ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 168/14
DATE: 20150702
B E T W E E N:
HER MAJESTY THE QUEEN
J. Dibski, for the Respondent
Respondent
- and -
DONALD McLEOD
Timothy Breen, for the Appellant
Appellant
HEARD: April 8, 2015 at Milton
REASONS FOR JUDGMENT
[On appeal from the conviction of L. Baldwin J.
On November 21, 2014]
André J.
[1] Mr. Donald Robert McLeod appeals his conviction of failing to provide a suitable sample of his breath into an intoxilyzer machine, pursuant to s. 254(3) of the Criminal Code of Canada. He raises three grounds of appeal namely:
(1) The intervention of the trial judge during the trial gave rise to a reasonable apprehension of bias.
(2) That the trial judge erred in taking judicial notice of the location of the Waterfront Hotel in Burlington.
(3) That “fresh evidence” should be admitted for consideration by the summary appeals judge.
[2] The Crown insists that the trial judge committed no error and that consequently, the appeal should be dismissed.
Background Facts
[3] In the early morning hours of March 14, 2014, P.C. Shalabh Tayal attended the Solid Gold bar in Burlington in response to a call concerning a suspected impaired driver. Police found the appellant parked on the roadway near the bar. The appellant was seated in the driver’s seat and the engine was running. In the course of conversation the appellant acknowledged having consumed alcohol that evening. The appellant displayed no indicia of impairment.
[4] P.C. Tayal then demanded that he provide a roadside screening sample. The appellant agreed and made 10 attempts but was unable to provide a sufficient sample. The appellant was arrested and charged.
[5] Mr. McLeod testified that he resides in Strathroy, Ontario and had come to Burlington to interview for an executive position with a large firm. He met with the President/C.W.O. at the company offices. At around 5:30 p.m., at the President’s invitation, the meeting continued at a restaurant, Emma’s Back Porch, where they were later joined by the executive team.
[6] As the evening wore on Mr. McLeod decided to spend the night in town rather than drive home. The evening concluded around 12:30 a.m. After leaving the restaurant Mr. McLeod searched for local hotels on his iPad. He testified that he drove for about 10 minutes, looking for a hotel, before concluding that he was lost. Mr. McLeod testified that he stopped at the Solid Gold bar to ask for directions. He maintained that he was sober, having consumed four or five beers between 5:30 p.m. and 12:30 a.m. Mr. McLeod testified that he made every effort to provide a sufficient sample but was unable to blow long enough to do so. He explained that each attempt left him winded, as though he had climbed a flight of stairs. The appellant denied that he intended to avoid providing a sufficient sample.
[7] At 1:28 a.m., P.C. Tayal provided Mr. McLeod with a formal demand, Mr. McLeod indicated that he understood. The officer then described what was required to complete the test successfully and demonstrated by blowing into the screening device himself. He then gave Mr. McLeod a new mouthpiece. Mr. McLeod unwrapped the mouthpiece and P.C. Tayal inserted it into the tube.
[8] Beginning at 1:32 a.m., Mr. McLeod attempted to provide a breath sample. He made 10 attempts but was unable to provide a satisfactory sample, although on each occasion the machine indicated that a breath sample was received. P.C. Tayal testified that Mr. McLeod would puff his cheeks and blow into the screening device but would not provide the sustained airflow required for a reading. On seven of the attempts, the device reported “insufficient flow”. On three of the attempts, the code E06 was displayed. P.C. Tayal could not recall what this code meant other than that the test was unsuccessful. He testified that Mr. McLeod maintained that he was trying to provide a sufficient sample. Mr. McLeod denied that he had any physical problem that affected his ability to do so. After six attempts, Mr. McLeod was advised that, if he was unable to provide a sample after 10 attempts, he would be arrested and charged with refusal. Constable Tayal testified that Mr. McLeod performed the tests at his own pace and was not pushed or hurried to do so.
[9] At 1:41 a.m., after the tenth attempt failed, the officer arrested Mr. McLeod for refusing to provide a sample. Mr. McLeod was advised of his rights to counsel and transported to 30 Division in Burlington, arriving at 2:05 a.m. At 3:22 a.m. P.C. Tayal served Mr. McLeod with documents.
[10] At the conclusion of his re-examination, the trial judge cross-examined the appellant as to whether he had seen the Waterfront Hotel, which was “right beside” Emma’s Back Porch. The appellant denied having seen the hotel. The presence of the Waterfront Hotel had not been raised by counsel.
[11] In reasons for judgment the trial judge rejected the appellant’s evidence on the basis that he must have seen the Waterfront Hotel. The trial judge concluded that the appellant’s evidence that he was looking for a hotel was a “complete fabrication” and rejected his testimony that he lacked the intent to avoid providing a sufficient sample.
Analysis
[12] This appeal raises the following issues:
(1) Did the trial judge’s intervention during the trial give rise to a reasonable apprehension of bias?
(2) Should “fresh evidence” be admitted in this appeal?
(3) Did the trial judge err in taking judicial notice of the location of the Waterfront Hotel?
ISSUE ONE – Did the trial judge’s intervention during the trial give rise to a reasonable apprehension of bias?
[13] At the conclusion of the re-examination of Mr. McLeod during the trial, the following exchange took place between the trial judge and Mr. McLeod:
The Court: I have a question. You’re eating and drinking at Emma’s Back Porch.
Mr. McLeod: Yes.
The Court: And that’s downtown Burlington. And then you said people that you were with said the hotel was right by. What hotel was it that you were looking for sir?
Mr. McLeod: I think it was a Country Garden Inn, if that makes sense. Gees, I apologize, I’m not familiar with the area, but I think it was something along those lines, Country Garden Inn. It would have been a place that would be open at that time and be very close.
The Court: Well, the Waterfront Hotel, sir, is right at the bottom of Brant Street. It’s right at the bottom of where this Courthouse is, and it’s right beside Emma’s Back Porch. Does that sound familiar?
Mr. McLeod: No, it doesn’t. I’m sorry, it doesn’t.
[14] In considering the scope of judicial intervention during a trial, the Ontario Court of Appeal observed in R. v. Valley (1986), 1986 4609 (ON CA), 13 O.A.C. 89, 26 C.C.C. (3d) 207 (Ont. C.A.) at paragraph 53 that:
…A criminal trial is, in the main, an adversarial process, not an investigation by the judge of the charge against the accused, and, accordingly, the examination and cross-examination of witnesses are primarily the responsibility of counsel. The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted. Generally speaking, the authorities recommend that questions by the judge should be put after counsel has completed his examination, and the witnesses should not be cross-examined by the judge during their examination-in-chief…
[15] Similarly, in R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141 (Ont. C.A.), the Ontario Court of Appeal stated as follows at paragraph 53:
The first two situations of permitted interventions by the trial judge set out in Valley are self-explanatory. The third situation in which a trial judge is permitted to intervene, namely, to ask questions that should have been asked by counsel, is not an open-ended invitation to the trial judge to usurp the role of Crown counsel. The judge cannot leave his or her position of neutrality as a fact-finder and become the cross-examiner…
[16] In R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 at para. 31, the Supreme Court of Canada articulated the following test for a reasonable apprehension of bias:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."
The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[17] In my view, the questions posed by the trial judge to Mr. McLeod do not support a conclusion that there was a reasonable apprehension of bias. The judge clearly sought to clarify what Mr. McLeod meant when he testified that he was looking for a hotel close to his location at Emma’s Back Porch. The trial judge believed that the Waterfront Hotel was “right beside Emma’s Back Porch” and understandably asked Mr. McLeod whether he had seen the Hotel.
[18] In asking these questions, it cannot be said that the trial judge usurped the role of the Crown or abandoned her position of neutrality. Neither can it be said that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that more likely than not, the trial judge would not have decided the case fairly. Furthermore, the fact that the trial judge may have been honestly mistaken about the exact location of the Waterfront Hotel in relation to Emma’s Back Porch does not support a conclusion that she could not decide the case fairly.
ISSUE TWO – Should fresh evidence be admitted in this appeal?
[19] Section 683 of the Code provides a court of appeal with the discretion to admit fresh evidence.
[20] In R. v. Palmer (1979), 1979 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193 at para. 21 (S.C.C.) the Supreme Court of Canada set out the following criteria for the admission of fresh evidence on an appeal:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[21] Similarly, in R. v. M.(P.S.), 1992 2785 (ON CA), [1992] O.J. No. 2410, 77 C.C.C. (3d) 402 (Ont. C.A.) at para. 27, Doherty J.A. observed:
The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis required by the fourth consideration. The first criterion, due diligence is not a condition precedent to the admissibility of “fresh” evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the evidence… [citations omitted].
[22] The fresh evidence adduced by Mr. McLeod is a Google map which shows that there is a distance of 350 metres between Emma’s Back Porch and the Waterfront Hotel. In my view, the interests of justice warrant the admission of this evidence given the trial judge’s conclusion that the Waterfront Hotel was “right by” Emma’s Back Porch. In any event, the Crown does not oppose the admission of this evidence for the purposes of this appeal.
ISSUE THREE – Did the trial judge err in taking judicial notice of the location of the Waterfront Hotel?
[23] Judicial notice is the acceptance of facts without formal proof. It applies to facts that are sufficiently notorious that they are not the subject of dispute among reasonable persons, or to facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy: R. v. Williams, 1998 782 (SCC), [1998] S.C.J. No. 49 [1998] 1 S.C.R. 1128 (S.C.C.) at para. 54; R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97, 115, at para. 48.
[24] In R. v. Potts (1982), 1982 1751 (ON CA), 36 O.R. (2d) 195; 66 C.C.C. (2d) 219 (Ont. C.A.), the Ontario Court of Appeal noted at paragraphs 20 and 22 that:
…[W]hat constitutes common knowledge is to be judged by reference to that which is common knowledge in the community where and when the issue is being tried.
…it is not [the function of the appellate court] to adjudicate upon the correctness of a trial court’s decision to take judicial notice of some fact or matter known locally, relying solely upon the appellate court’s knowledge of, (or,… its lack of knowledge of) that which was noticed in the court below, …[as in a province as] vast as Ontario, it is [unlikely that the] members [of the appellate court would] share … in the knowledge that is “common knowledge” in the diverse communities from which it draws its cases.
[25] In light of the above cases, the trial judge did not err in taking judicial notice of the location of the Waterfront Hotel. The hotel appears to be a local landmark in the community. Its location, as the fresh evidence indicates, is capable of immediate and accurate demonstration by readily accessible sources of indisputable accuracy.
[26] That said, it is clear that the hotel was not as close to Emma’s Back Porch as the trial judge believed. It is also clear that the trial judge’s misapprehension of this fact was a factor in her rejection of Mr. McLeod’s evidence. As she noted at page 126 of her reasons for judgment:
I reject Mr. McLeod’s evidence that he did not see the Waterfront Hotel. It is in walking distance of Emma’s Back Porch. He could have literally left that restaurant and just walked right on over to this very large, well lit hotel.
[27] However, I question whether the trial judge’s misapprehension of the distance between Emma’s Back Porch and the Waterfront Hotel had any discernible, let alone, significant impact on the trial judge’s decision. In her reasons for judgment, the trial judge noted that:
I reject his evidence that he went to the strip club to get directions to a hotel on Plains Road at Waterdown Road where this strip club is located, he would have passed a number of gas stations – appropriate place to get instructions for a hotel – convenience stores – also open and appropriate places to get directions to hotels – and also a number of other motels. I reject as a complete fabrication that he went to the Solid Gold Strip Club to get directions to a hotel.
I find that Mr. McLeod drank alcohol over a seven hour period in Burlington. It was late and he decided he was going to stay in Burlington for the night which was not his original plan, that is why he had to text his wife and tell her that he is going to be staying here. I find that he had been drinking and driving when he was approached by the police and he intentionally failed to provide a suitable sample because he had been drinking alcohol and he was worried he would be in trouble if he blew over the legal limit. He was given ten reasonable opportunities over a nine minute period to provide a suitable sample. There was no evidence he was confused in any way. The instructions were clear. He was warned of the consequences of failing to provide a suitable sample, and despite all of that he did not.
Reasons for Judgment, page 126
[28] In my view, the trial judge’s decision was not influenced by her taking judicial notice of the location of the Waterfront Hotel. The trial judge’s decision was based on the evidence regarding the ten opportunities given by Constable Tayal to Mr. McLeod to provide a suitable sample of breath into the approved screening device and the absence of any evidence that Mr. McLeod was confused by the instructions given to him by the investigating officer.
Disposition
[29] For the above reasons, the appeal is dismissed.
André J.
Released: July 2, 2015
COURT FILE NO.: 168/14
DATE: 20150702
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
DONALD McLEOD
Appellant
REASONS FOR JUDGMENT
André J.
Released: July 2, 2015