R. v. Pacheco, 2015 ONSC 3633

CITATION: R. v. Pacheco, 2015 ONSC 3633

COURT FILE NO.: CR-14-50000111-00AP

DATE: 20150604

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ALBANO PACHECO

Appellant

Lori Hamilton, for the Crown

J. Randall Barrs , for the Appellant

HEARD: April 16, 2015

REASONS FOR JUDGMENT [ON APPEAL FROM THE JUDGMENT OF JUSTICE L. BUDZINSKI OF THE ONTARIO COURT OF JUSTICE DATED SEPTEMBER 5, 2014]

B. P. o’marra, J.

OVERVIEW

[1] The appellant was convicted of impaired operation of a motor vehicle after a one-day trial on September 5, 2014. He appeals his conviction on the basis that the trial judge erred as follows:

convicting him after finding he had language issues that may have affected the way he gave evidence, his appearance, his understanding of questions, and his ability to respond;
not giving proper weight to the following:

a) his difficulty in communicating with the police due to language barriers;

b) problems with his mobility related to a pre-existing leg condition, and

c) uncontroverted evidence of his weaving with his old car to avoid potholes when only he and the civilian witness were on the road;

finding that he had deficient motor skills despite other explanations for the manner in which he was driving his vehicle;
taking judicial notice that two drinks of alcohol would have an effect on an individual; and
assessing the defence’s evidence by seizing on minor inconsistencies and ignoring evidence that raised a reasonable doubt.

SUMMARY OF THE EVIDENCE

Testimony of Officer Adrian Dyke

[2] Officer Dyke testified that, on the morning or June 25, 2013, he and his escort were working on a mobile RIDE enforcement in the City of Toronto. Shortly after midnight, they received a radio call from a dispatcher. A civilian had called to report an impaired driver. The civilian reported seeing a red SUV vehicle swerving within the lane and hitting the island or the curb. The civilian witness provided the vehicle’s license plate number.

[3] The officers drove to the reported area and located the appellant’s vehicle on Dundas Street West and Jopling Avenue at 12:19 a.m. The vehicle matched the description provided by the civilian witness and was parked in the third lane. The officers observed no traffic or obstruction in the roadway that would cause the appellant to stop at that location.

[4] Officer Dyke testified that the vehicle had stopped one or two car lengths away from the scout car. The officers exited the cruiser and approached the vehicle. As they approached, the vehicle slowly started to move away a few feet. At this time, the police vehicle lights were active. The officers began yelling and telling the appellant to stop. They yelled and motioned to the appellant to stop several times before he stopped.

[5] Officer Dyke’s escort began to speak with the appellant. The window was down and both officers were telling the appellant to turn the vehicle off. After several attempts at trying to tell the appellant to turn off the vehicle, the officers reached in and turned off the ignition, removed the keys, and placed them on the roof of the vehicle.

[6] As they were standing at the driver’s window and speaking to the appellant, Officer Dyke noticed a strong body odour as well as a strong odour of alcohol emanating from the vehicle. Officer Dyke’s escort demanded that the appellant exit the vehicle. The officers opened the driver’s door. As he stepped out, the appellant appeared to be very unsteady on his feet. He reached out for Officer Dyke’s escort and grabbed the vehicle for balance. Officer Dyke observed that the appellant’s eyes appeared to be bloodshot and watery. Officer Dyke testified that as he walked to the police cruiser, the appellant was “not able to walk in a straight line confidently, [he was] unbalanced…wobbling, kinda swerving”.

[7] The officers formed the grounds to arrest the appellant for impaired operation of a motor vehicle. The appellant was handcuffed and placed in the back of the scout car. Officer Dyke’s escort was attempting to explain to the appellant the reason for arrest and his rights to counsel. Officer Dyke testified that the appellant appeared to have a hard time understanding English and that his escort was doing his best to explain everything to him.

[8] The officers drove the appellant to 22 Division for an intoxilyzer breath test. They arrived at 22 Division at 12:39 a.m. The appellant had difficulty exiting the scout car because of the tight space and was slow and unsteady as he walked. As he was approaching the booking desk, the appellant stated “I’m drunk.”

[9] Officer Dyke testified that his observations of the appellant led him to believe that he was impaired by alcohol.

[10] In cross-examination, Officer Dyke agreed that he did not know about the appellant’s physical problems or how he typically walks.

Testimony of Pawel Fadula

[11] Pawel Fadula was the civilian witness. He testified that he observed a vehicle “swerving all over the road,” in between the two lanes and across the yellow line on St. Clair. He stated that the driver was “heading west, and…not staying in his own lane, but instead going a couple feet into the right lane, then going back into his lane, then going a couple feet over the yellow lane that divides the road, back and forth.” Mr. Fadula testified that the traffic was very light and that the driver ran a red light.

[12] Pawel Fadula called 911 to report a drunk driver on the road. He testified that there were no other drivers on the road. He and the other driver were driving at the speed limit. He did not know how many times the other vehicle weaved. He testified that he never lost sight of the vehicle.

[13] Mr. Fadula testified that, as the driver made a left turn from St. Clair Avenue onto Scarlett Road, the right side of his vehicle struck the cement guard rail. The other driver then made a right turn onto Dundas Street and “proceeded west on Dundas, as if nothing happened.” He testified that at one point, the driver stopped in the middle of the street for a couple of seconds 200-300 feet away from the intersection and then continued driving.

[14] Pawel Fadula testified that he followed the vehicle on Dundas Street until the police arrived. He stayed in his vehicle.

Testimony of the Appellant

[15] The appellant testified with the assistance of a Portuguese/ English interpreter. He said that he was heading home after drinking 2 ounces of brandy. He stated that “it didn’t make a difference to [him],” that it “did not affect [him] at all,” that he “was not impaired, [that he] didn’t feel anything” and that “[his] head was…fine.” He stated that it was unusual for him to drink because he is on medication.

[16] The appellant stated that his vehicle was old and had steering issues, so he weaved around potholes. As he was driving, he noticed that a car was always behind him, so he stopped to see if the car would pass. He testified that he would not have swerved as he did if there were other cars on the road.

[17] The appellant denied that he hit a barrier. He testified there was no damage to his vehicle. He further testified that he had to swerve two or three times to avoid potholes. He denied stopping on the roadway or running a red light. He further denied that he started moving away as the officers approached his vehicle. He testified that he did not hear the officers yelling at him to stop.

[18] The appellant agreed that he was stumbling as he walked to the scout car but testified that it was because his leg was numb. He denied that he lost his balance and stated that he sometimes experiences pain in his leg. He further explained that sometimes his leg goes numb and he has to make a movement in order to hold himself. He insisted that he did not feel the effect of alcohol.

JUDGMENT AT TRIAL

[19] The trial judge took judicial notice of the road conditions in Toronto and particularly, the potholes. He accepted that the appellant is an older man with physical limitations. He also accepted that the appellant has language issues that may affect the way he gives evidence, the way he appears, and his understanding of the questions and his responses. The trial judge stated that those misunderstandings fall to the benefit of the accused where there is any confusion as to the evidence. He did not consider the evidence relating to the appellant’s statement at the station, where he spontaneously said, “I am drunk.”

[20] The trial judge explained that the issue at trial was to some extent credibility.

[21] In discussing reliability, the trial judge observed that, while no witness is perfectly objective, Officer Dyke made it very clear that on a number of occasions he observed the appellant and his observations led him to believe that the appellant was affected by alcohol. He further noted that the officer differentiated between impairment and other problems that the appellant encountered, such as his difficulty getting out of the scout car at the station.

[22] The trial judge noted that the evidence must be assessed in light of the overall picture, and that while many of the appellant’s difficulties may be explained, “in the totality of it, [the evidence] develops a picture of a person who is lacking significant motor skills that would affect his ability to operate a motor vehicle, therefore contributing to impairment, as defined in R. v. Stellato.”

[23] Moreover, the trial judge reasoned that the accused admitted to drinking alcohol and that the observations of Officer Dyke are consistent with impairment by alcohol. More importantly, the trial judge found that the evidence of Pawel Fadula, who was maneuvering the same road as the appellant, indicated that the appellant’s driving was unusual. The trial judge found that Pawel Fadula’s observations were not only supported, but seem consistent with the overall picture of impairment of the appellant.

[24] With respect to the effect of alcohol consumption, the trial judge found that while the accused testified that the 2 ounces of brandy had no effect on him, “two drinks have some effect, whether one notices it or not… But to say ‘it had no effect’ is somewhat difficult to understand.”

[25] The trial judge found that the accused’s rationalization that he was swerving to avoid potholes “does not fit into the picture that unfolds in this particular case.” He found this evidence to be “unreliable and untrustworthy.” Having rejected this evidence, the trial judge concluded on the basis of the remaining evidence that the Crown had proved its case beyond a reasonable doubt.

ANALYSIS

[26] The offence of impaired operation of a motor vehicle is established by proof of any degree of impairment from slight to great. Impairment is an issue of fact for the trial judge. See R. v. Stellato, 1994 CanLII 94 (SCC), [1994] 2 SCR 478, affirming 1993 CanLII 3375 (ONCA).

[27] On a charge of impaired operation, the Crown is not obliged to prove that the accused knew or intended that he be impaired. The mens rea is voluntary consumption of alcohol and operation of a motor vehicle. See R. v. MacCannel (1980), 1980 CanLII 2883 (ON CA), 54 C.C.C.(2d) 188 (Ont.C.A.)

[28] Absent expert evidence, a trial judge cannot find that because a person consumed a stated amount of alcohol, whether determined as a result of the blood alcohol readings or testimony regarding consumption, their ability to operate a motor vehicle was impaired by alcohol. See R. v. Kumric [2006] O.J. No. 4886 at paras. 13, 15 and 17 (S.C.O.).

[29] The trial judge did not take judicial notice of the effects of alcohol that the appellant claimed to have consumed. He referred to that evidence in passing but did not extrapolate the information into evidence of impairment.

[30] The amount the appellant claimed to have consumed was properly relevant to his credibility. The arresting officers detected the strong odour of alcohol from inside the appellant’s car.

[31] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence, when advanced as a ground to impeach a final verdict, must be material, not merely peripheral to the reasoning of the trial judge. In other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment. See R. v. Mahmood 2011 ONCA 693 at para. 48, R. v. Morrissey 1995 CanLII 3498 (Ont. C.A.)

[32] Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual finding are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned. See R. v. Biniaris 2000 SCC 15 at para. 24.

[33] This case turned on findings of fact and inferences drawn by an experienced trial judge. The appellant submits that the trial judge misapprehended the evidence and drew unwanted inferences.

[34] The trial judge assessed the evidence relevant to impairment in its totality. He carefully weighed the alternative explanations for the bad driving observed and the appellant being unsteady on his feet. The trial judge did not accept, and indeed found untrustworthy, the evidence of the appellant as to his driving and the effects of alcohol. The trial judge’s findings of fact and assessment of credibility deserve significant appellate deference. See R. v. R.E.M. 2008 SCC 51 at para. 66, R. v. R.P. 2012 SCC 22 at para. 10.

[35] The appellant in effect asks this court to reconsider and re-weigh the evidence and substitute its own view for that of the trial judge. On appeal this court is entitled to review and re-examine the evidence for the limited purpose of determining whether it is reasonably capable of supporting the trial judge’s conclusions. See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.

[36] I do not find that there was any misapprehension of the evidence and the findings and inferences drawn were reasonably available to the trial judge.

RESULT

[37] The appeal is dismissed.

B. P. O’Marra, J.

Released: June 4, 2015