CITATION: Sathiamoorthy –and- Her Majesty the Queen, 2015 ONSC 463

COURT FILE NO.: 13536/13

DATE: 20150129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rajithan Sathiamoorthy

Appellant

– and –

Her Majesty the Queen

Respondent

Edwin Boeve, for the Appellant

Mitchell Flagg, for the Crown/Respondent

HEARD: December 18, 2014

GILMORE J:

[1] The appellant appeals his conviction of impaired operation of a motor vehicle under Section 253(1) (a) of the Criminal Code.

[2] The appellant submits that the trial judge erred in his reasons by failing to consider the totality of the evidence, by reversing the burden of proof and by imposing an unreasonable verdict. The over 80 count in this case was withdrawn by the Crown during the trial.

Background Facts

[3] The background facts in this case are mostly uncontested. The Crown called three witnesses, Constable Troy Bain, the arresting officer; Constable Scott Montgomery the accompanying officer; and Constable J. Piper the breath technician. The appellant did not give evidence.

[4] Constable Bain’s evidence was that on the evening in question he was driving with P.C. Montgomery in a police cruiser in the City of Pickering when he noticed a black Ford Mustang put on an indicator light to go over to the left lane. The vehicle started to proceed into the left lane and then decided not to go into that lane. The officer noted the vehicle tried to go back into the left lane. The vehicle did not use an indicator at this point and another vehicle in the left lane had to move over to avoid being hit.

[5] At this point Constable Bain activated his roof lights and the Mustang stopped right away. Constable Bain approached the driver’s side and advised the driver of the reason for the stop to which the driver provided “a very polite response.” At this point Constable Bain noted glossy red eyes and an odour of alcohol coming from the appellant’s mouth.

[6] The driver told Constable Bain he did not have anything to drink and when asked to exit he was “a little unsteady on his feet and he used his arm to kind of brace himself – used his arm on the car to brace himself”. As he walked back to the cruiser “he was still a little unsteady on his feet”.

[7] Constable Bain noticed nothing unusual about the appellant’s speech although the appellant advised P.C. Montgomery he had consumed three “Buds” in the span of three hours. The appellant was arrested at 11:02 p.m. and read his rights to counsel, caution and breath demand. He was then taken to 19 Division, spoke to duty counsel and was turned over to the breath technician Constable Piper at 11: 51 p.m. After he finished with the breath technician he was turned back over to Constable Bain and released.

[8] In cross-examination Constable Bain testified that he did not observe the vehicle swerving into the oncoming traffic lane and that once the roof lights were activated there was nothing unusual about the appellant’s stop. The accused was not observed to be speeding and upon stopping he parked properly. Constable Bain did not note that the appellant had bloodshot eyes, a flushed face or slurred speech.

[9] While Constable Bain described the appellant at trial as “a little unsteady, but he was fine walking back, he was a little unsteady”, his notes made no reference to this. Constable Bain received identification from the appellant which was given to him without difficulty.

[10] Constable Bain’s notes did not indicate any unsteadiness while the appellant was being read his rights or while he was standing at the back of his vehicle. Further, Constable Bain noted the appellant had no difficulty getting in and out of the cruiser, no unsteadiness as he walked into the police station, no unsteadiness during the parade process, no unsteadiness when he walked in and out of the room to speak to duty counsel, to go the bathroom or to go in and out of the breath room.

[11] Constable Montgomery was travelling with Constable Bain on the night in question. He testified that the appellant’s vehicle was partially into the left hand turn lane, came back into the second lane and as the vehicle proceeded through the intersection the right side tires went into lane one and the vehicle had to pull to the right to take evasive action. The roads were wet that evening and there was some light snow falling.

[12] Constable Montgomery noted that as the appellant exited the car “at one point he had to put his left hand down towards the pillar of the vehicle, like, the quarter panel – where the quarter panel comes down towards the trunk area to steady himself”. In cross-examination Constable Montgomery described this as “like, an attempt to brace himself”.

[13] Constable Montgomery noted there was an odour of alcohol coming from the appellant’s breath and that his eyes were bloodshot. He noted that the appellant’s speech was not regular but neither was it slurred. The appellant denied consuming alcohol and subsequently admitted to having three drinks.

[14] Constable J. Piper testified that the appellant was turned over to him at 11:51 p.m. and was with him till 12:23 a.m. He noted that the appellant had a moderate odour of alcohol coming from his breath and that his speech was “good to fair”. He did not note any slurred speech. He noted “bloodshot eyes and that was pretty much it.” There were no other observations on impairment noted by Constable Piper. He deems the effects of alcohol to be slight to obvious. Constable Piper made no notes of unsteadiness or swaying when the appellant asked to go to the bathroom and when he walked in and out of the breath room. The appellant opened the plastic wrapping on the mouthpiece without difficulty and did not fumble or drop the mouthpiece. He was polite and co-operative throughout.

The Reasons for Judgment

[15] In his Reasons for Judgment the trial judge made clear that he agreed that Constable Bain’s evidence was inconsistent and accepted Constable Montgomery’s evidence that the appellant had to stop and brace himself on the quarter panel of his car because he was unsteady and “that with the odour of alcohol and the bloodshot and glossy eyes gets the Crown over the high standard that he has to meet.”

[16] With respect to his reasons for accepting Constable Montgomery’s evidence the trial judge described it as follows:

First of all, it is clear his evidence was not undermined and it was an observation amidst the other evidence that I thought he gave in a very fair manner. He did not try to gild the lily in describing other indicia of impairment on your part, so I found him a very fair clear witness whose evidence I am just compelled to accept….and given the test I am obliged to apply as set out by the Supreme Court of Canada in Stellato, I simply must find you guilty and I do so. The over 80 charge is of course dismissed.

[17] Prior to giving these reasons the trial judge engaged in a form of debate with defence counsel in which he gave reasons as to why he rejected Constable Bain’s evidence finding him to be a “rather careless witness in many ways and not just the breathalyzer/blood test reading, he just seemed a bit careless”. In addition there was an exchange between the trial judge and Mr. Boeve which forms part of the basis for this appeal which is reproduced below:

“THE COURT: Was this driver error or was it impairment and on the issue of impairment these are to me the unchallenged and un-contradicted facts. There’s a moderate odour of alcohol and blood shot, glossy eyes. That gets the crown up to probably.

MR. BOEVE: Yes.

THE COURT: Not proof beyond a reasonable doubt yet, but to me what does get the crown, unless you persuade me otherwise to prove beyond a reasonable doubt is Officer Montgomery’s statement that in addition to all of that when the defendant had to walk to the cruiser he actually had to steady himself on the quarter panel…

MR. BOEVE: Yes.”

Issue One on Appeal - Did the Trial Judge Err by Failing to Consider Whether There was a Reasonable Doubt on the Evidence as a Whole?

[18] The appellant submits that the trial judge failed to review all of the evidence including the evidence that assisted the appellant such as a lack of slurred speech and a lack of unsteadiness at many points during the evening. The appellant submits that in accordance with R. v. A.P. 2013 ONCA 344, [2013] O.J. No.2291 (OCA) at paragraphs 33 to 35 a trial judge’s reasons must demonstrate that the evidence was considered as a whole.

[19] The appellant argues that in the case at bar the trial judge referred only to Constable Montgomery’s evidence and neither Constable Bain’s evidence nor the breath technician’s evidence is mentioned. While the trial judge makes mention of the potential contradiction of Constable Montgomery’s evidence by Constable Bain, the trial judge does not refer to any of Constable Bain’s uncontradicted evidence. He has ignored evidence of there being nothing unusual about the appellant’s stop, the fact that he parked properly and that he was never observed to be speeding. Further Constable Bain noticed no bloodshot eyes, no flushed face and no slurred speech, unsteadiness or swaying while the appellant was at the back of the vehicle nor while he was reading him his rights. Finally, Constable Bain noted no unsteadiness getting in and out of the cruiser, no unsteadiness as the appellant walked into the police station, during the parade process, walking in and out of the room to speak with duty counsel, walking in and out of the breath room and walking in and out of the bathroom. The appellant submits that the trial judge failed to consider that there was no unsteadiness noted by any witness after the appellant reached the police station.

[20] The Crown submits that the only issue required to be determined by the trial judge was whether the appellant’s ability to drive at the time he was stopped by police was impaired by alcohol by any degree from slight to great. It is therefore not unreasonable that the trial judge’s Reasons were brief and focused on that issue. His exchange with defence counsel at the end of trial was simply to give defence counsel an opportunity to respond to the concerns that he had in light of the essential elements of the offence.

Ruling on Issue 1

[21] I do not find that the trial judge erred in failing to consider the evidence as a whole. The case at bar is distinguishable from R. v. A.P. as in that case the Appeal Court was considering a credibility contest between a complainant and an accused. In this case the accused did not give evidence. Further, according to A.P. there is “no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts” (para 46.)

[22] Further the relevant time with respect to determining whether the offence of impaired care and control is proved is at the time of driving. It was therefore not necessary for the trial judge to give significant weight to the evidence presented after the appellant arrived at the station.

[23] Justice De Filippis is an experienced trial judge who hears many such cases week to week. I agree with the finding in R. v. A.P. that he is not required to recite every piece of evidence upon which he relies to make his decision. He did, in my view, consider the most pertinent and important evidence with respect to the offence being made out and rejected some of Constable Bain’s evidence and accepted that of Constable Montgomery on the most salient points. In my view he considered the most relevant evidence as a whole. He was certainly aware of the evidence of Constable Piper, the other evidence of Constable Bain and the fact he chose not to recite this in his Reasons is not fatal to the case in my view.

Issue 2 – Did the Learned Trial Judge Err by Reversing the Burden of Proof

[24] The appellant submits that the trial judge reversed the burden of proof. This is evidenced by his comment to defence counsel that “unless you can persuade me otherwise” Constable Montgomery’s evidence regarding the appellant having to steady himself brought the Crown’s case to beyond a reasonable doubt.

[25] The appellant argues that the trial judge’s lack of reference to the totality of the evidence combined with the comment “unless you can persuade me otherwise” indicates that the trial judge started with the premise that the appellant should be found guilty unless his counsel could persuade the trial judge otherwise. The appellant also relies on W.D.

[26] The Crown submits that the judge’s exchange with defence counsel was simply what he felt to be the critical issue and on which he invited defence counsel to comment. This was not shifting the burden of proof but simply identifying it.

Ruling on Issue 2

[27] I do not take the judge’s comment to defence counsel with respect to being “convinced otherwise” as anything more than the judge identifying what the key issue in his mind was with respect to whether the Crown had proven their case. After inviting defence counsel to give his submissions on this point, the trial judge found that as a result of accepting Constable Montgomery’s evidence the Crown had proven its case beyond a reasonable doubt.

Issue 3 – Was the Verdict Unreasonable?

[28] The appellant submits that the test for an unreasonable verdict is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered.”

R. v. Sheppard 2002 SCC 38, [2002] S.C.J. No.39 at paragraph 4

[29] The appellant submits that the verdict is unreasonable because the totality of evidence could not have established the guilt of the appellant because during the time the appellant was interacting with police he was only noted to be unsteady on one occasion and this was contradicted by the evidence of Constable Bain.

[30] The Crown submits that the trial judge in his Reasons for Judgment noted the minimal requirements for Stellato and the requirement that the evidence of impairment be at the time of driving. While it may have been helpful for the trial judge to revert to what happened at the station, it was not essential or fatal with respect to the appeal.

Ruling on Issue 3

[31] R. v. Stellato, 78 C.C.C. (3d) at page 384 (O.C.A.) remains good law and is clear with respect to the evidence required to establish impairment. That case states “If the evidence of impairment establishe any degree of impairment ranging from slight to great, the offence has been made out”. It is clear from Justice De Filippis’s comments that this is a case in which the evidence of impairment was towards the “slight” end of the scale. However, Stellato makes it clear that even where the evidence of impairment is slight that is sufficient for the Crown to meet its burden.

[32] In the circumstances I do not find that the verdict was unreasonable and the appeal is dismissed on all grounds.

The Honourable Madam Justice C. Gilmore

Released: January 28, 2015