ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 85/14
DATE: 2015/09/09
B E T W E E N:
HER MAJESTY THE QUEEN
J. Coppolino, for the Crown
Respondent
- and -
AARON WILLIAM LACEY
Self-represented
Appellant
HEARD: August 28, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice Nadel]
A.J. GOODMAN J.
[1] This is an appeal against conviction imposed on September 30, 2014 by Nadel J. of the Ontario Court of Justice at St. Catharines, Ontario.
[2] The events giving rise to this appeal occurred on August 20, 2013 at the international border crossing at Queenston, Ontario. The trial proceeded on all of the allegations and the appellant was convicted of refusing to provide a breath sample and was acquitted of impaired driving and drive a motor vehicle with blood alcohol concentration of over 80 milligrams in 100 millilitres of blood, contrary to their respective provisions in the Criminal Code.
[3] The appellant was sentenced to a minimum fine and driving prohibition.
[4] In this appeal, the appellant advances an argument on several substantive issues and also provided voluminous material related to allegations of bias and collusion on behalf of the trial judge and other named individuals or entities.
The Evidence at Trial
[5] The evidence in this case has been laid out in the facta and Reasons for Judgment. I have also been provided with the transcripts of the proceedings. For the sake of brevity, I will only refer to brief portions of the evidence in my analysis of the specific grounds of appeal, although all of the relevant evidence has been examined.
[6] On August 20, 2013, at approximately 1:00 am, the appellant was driving a motor vehicle from the U.S. into Canada, at the Queenston-Lewiston bridge crossing. He drew the attention of a Canadian Border Service Agency (CBSA) officer when he drove his grey sedan into a border-crossing lane strictly reserved for buses.
[7] When approached by a CBSA Officer, the appellant identified himself with a driver’s license. When asked if he had anything to drink, the appellant responded: “one beer”. The CBSA officer observed the appellant to have an odour of alcohol on his breath, glossy eyes and slurred speech. The officer suspected that the appellant had alcohol in his body and read him the approved screening device demand. The appellant indicated he understood the demand and was escorted into the adjacent building where an approved screening device was located. The office area where the appellant was taken was subject to video (but not audio) surveillance. The DVD was played at trial.
[8] The approved screening device, an Alcotest 7410 GLC was properly calibrated and self-tested by CBSA Officer Dear. It was found to be in proper working order. There was a brief delay after the first two aborted attempts when the officers attempted to secure another fresh mouthpiece.
[9] The appellant was given five separate attempts to provide a suitable breath sample. CBSA Officer Dear repeated the instructions and demonstrated the proper way to provide a sample. The appellant testified that he was clearly not refusing but actually assisting the CBSA officer. The CBSA officer testified that the appellant wasn’t following instructions, only making short bursts of breath, or feigning by placing the mouthpiece to the side of his mouth.
[10] After the fifth failed attempt, the appellant was arrested for refusing to provide a breath sample.
Position of the Parties
[11] The appellant submits that the trial judge erred in his overall assessment and application of the evidence. The appellant submits that the trial judge misapprehended the evidence of his alleged refusal to provide a proper breath sample. It is argued that this misapprehension was also a key component in the trial judge’s rejection of the defence evidence.
[12] From what I can glean from the appellant’s materials and submissions, the substantive conviction appeal has three grounds. Firstly, the trial judge gave insufficient weight to the appellant’s assertion that he suffers from a lung disease rendering him incapable of providing proper breath samples and providing a reasonable excuse. He argues that the lung disease excuse was never referred or considered by the trial judge. Second, the trial judge erred by not properly viewing the video evidence in conjunction with the evidence. The appellant’s act of assisting the CBSA Officer in placing the mouthpiece into the ASD was clearly “a major error” and overlooked by the judge. The CBSA officer interfered with his valid attempts at compliance. The appellant submits that the Crown has failed to prove the essential element of mens rea as the video clearly shows numerous samples provided by the appellant, including one of a nine-second duration. Thirdly, the trial judge failed to find a s.10 (b) Charter breach as he was not provided with an opportunity to consult counsel prior to providing the breath sample.
[13] The appellant also advanced a myriad of other complaints including allegations of bias and collusion leading to a denial of justice and fairness.
[14] Mr. Coppolino, on behalf of the Crown, submits that the appellant’s arguments do not raise the issue of their sufficiency and the trial judge’s Reasons are entirely responsive to the case as presented and argued by both sides. The trial judge did not err in his assessment of the issues and the evidence. Crown counsel submits that the trial judge’s Reasons are particularly thorough and do not reflect any palpable or overriding error or factual misunderstandings.
[15] Crown counsel submits that the bias or collusion arguments raised by the appellant have no merit.
The Reasons for Judgment
[16] Justice Nadel reviewed the evidence and considered the submissions regarding the issues, the credibility of witnesses along with the legal principles. In his Reasons, the learned trial judge heeded the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 and rejected the appellant’s evidence as he found the appellant’s testimony to be unbelievable and internally and externally inconsistent. The trial judge found that the Crown witnesses were credible and reliable and their evidence was accepted. Justice Nadel only considered the officers’ testimony up to the point prior to the appellant’s arrest.
[17] The trial judge rejected the appellant’s evidence and found it did not raise a reasonable doubt. On the basis of the totality of the evidence, he found that the Crown’s case had been made out on the count of refusing a breath sample. On his own initiative, the trial judge raised a s. 8 Charter issue and discharged the appellant on the other two counts. At the same time, he turned his mind to a potential s. 10(b) Charter breach.
Legal Principles
[18] When considering unreasonable verdict grounds of appeal, insufficient weight or an error in an overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, re-weigh and consider the effect of the evidence: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have acquitted the appellant. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.
[19] It is not whether it was the only reasonable verdict, but whether it was a reasonable verdict: R. v. Portillo (2003), 2003 5709 (ON CA), 174 O.A.C. 226, 176 C.C.C. (3d) 467 (C.A.).
[20] In Biniaris, at para. 37, Arbour J. provided the following comments regarding the process to be employed in judge alone trials when determining whether a verdict was unreasonable in judge alone trials:
The review for unreasonableness on appeal is different ... and somewhat easier when the judgment under attack is that of a single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached ... [I]n trials by judge alone, the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion. The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached.
[21] An appeal court ought to afford deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence: Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201, at para. 315.
[22] The term “palpable and overriding error” includes findings based upon a misapprehension of evidence. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, or findings based on a misapprehension of evidence. This may include findings of fact that are the result of speculation rather than proper inference. “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence”: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.), at para. 83.
[23] The threshold that the appellant must meet on this ground is a stringent one. It is not any misapprehension that merits a finding of reversible error. Rather, the misapprehension must be a question of substance; must be “material” to the trial judge’s reasoning process; and must play an essential role, not just in the narrative, but in the reasoning process resulting in the conviction: R. v. Lohrer, 2004 SCC 80, 2004, 3 S.C.R. 732, at para. 2.
[24] If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, it must follow that the appellant has not received a fair trial and was the victim of a miscarriage of justice. This may occur even though the evidence at trial was capable of supporting a conviction: Morrissey, at para. 93.
[25] In every case, and particularly where the case turns almost entirely on the credibility of the witnesses, what is required is a balanced and even-handed examination of the evidence. Where it is evident that the trial judge held the accused accountable for every frailty and inconsistency he or she observed, but with very little critical analysis glossed over significant internal and external contradictions and weaknesses in the prosecution witness’ evidence, the accused has not received a fair trial. It is well settled that appellate courts ought to show deference to trial courts regarding the determination of credibility. The Supreme Court of Canada has re-iterated the test on appeal where the appellant seeks to overturn a conviction by having the appellate court interfere with findings of fact or inferences drawn. In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, the Court held at para 9:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm.
[26] The Supreme Court of Canada has directed that “[r]arely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. The real benchmark for sufficiency is whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel. Where a case turns largely on determinations of credibility, the sufficiency of reasons should be considered in the light of the deference afforded trial judges on credibility findings: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 42-57.
[27] There is no general requirement that the trial judge’s reasons must “enter into a detailed account of the conflicting evidence”, nor that they be so detailed “that they allow an appeal court to retry the entire case on appeal”. While sufficiency of reasons is necessary for review and to inform the parties, there is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel”: Dinardo, at para. 30; see also R.E.M., at para. 32.
Application of the Legal Principles to this Case
[28] As indicated, the W.(D.) standard was expressly cited by the trial judge and employed in his reasoning process. Justice Nadel appeared to have provided as much assistance to the self-represented appellant within judicial bounds and had also raised Charter concerns on behalf of the appellant.
[29] As Nadel J. stated at page two to three of his Reasons:
…And I do not consider any of the evidence beyond the arrest for refusal of the screening device. In my view that is the fairest and safest way to deal with the other evidence. Some of which only occurred as a result of what I found to be an unlawful arrest for the impaired offence, and thereafter the breath test. So I have limited my assessment of the evidence to the point of the arrest on this particular offence that remains outstanding for judgment.
It seems to me that had I considered the balance of the evidence that the case against Mr. Fichtner would have been substantially greater and to his detriment. And because I made findings and excluded the readings that is as far as I am going to take the evidence.
[30] When reviewing the evidence, Nadel J. noted some of the potential frailties, and also articulated his reasons for rejecting the appellant’s evidence. Given this analysis and articulated reasons, Nadel J. also considered and found the officer’s evidence credible and reliable as he stated at page 5:
In my view Mr. Fichtner[^1] was an unimpressive witness. He was unresponsive on many occasions. I reject his evidence that Officer Deer interfered with his use of the device and pulled it away from him prematurely. I never saw that in the video.
With respect to his various medical complaints, my view is they are of no moment. By his own admission he is a smoker. By his admission he says he was able to blow into the device. By his own admission he was inconsistent with respect to his description of those various illnesses.
I find that Mr. Fichtner uses language incredibly loosely. During the course of this recitation of his various medical conditions he complained that he had hay fever, general allergies, which he sometimes referred to as a sinus infection. That he smoked. That he had asthma, although he sometimes called that mild chronic pulmonary lung infection and therefore should not smoke. He said sinus infection was the same thing as allergies. When asked do you have an infection, not that he knew of. His evidence was loose, was incredible, was unacceptable. I reject it.
[31] In my opinion, there is ample evidence in support of this conclusion. I am not persuaded that there is a misapprehension of any of the appellant’s or prosecution’s witnesses’ evidence on the record before me. The appellant’s interpretation of what the video tape depicts, standing alone, is open to various interpretations. The trial judge specifically addressed and rejected the appellant’s assertion that the CBSA Officer interfered with his use of the devise by pulling it away from him prematurely. The trial judge indicated he reviewed the DVD exhibit and “I never saw that in the video”. When juxtaposed with the viva-voce testimony of the officers, the trial judge was entitled to arrive at the conclusions that he did.
[32] In addressing the appellant’s medical issue, the judge found that the evidence was not only unsupported but contradictory. Specifically, the trial judge rejected the evidence of the appellant having a medical condition rendering him incapable of providing breath samples. The trial found that the appellant’s testimony on his description of various illnesses was inconsistent. The Court also noted that by his own admission, the appellant was able to provide samples of breath into the Breathalyzer instrument later that same morning. Even if that portion of the evidence is excised from the Reasons, there remains ample support for the trial judge’s conclusion that the appellant did not suffer from a lung ailment or impeded by any illness in providing a suitable sample.
[33] With regards to the rights to counsel, the trial judge specifically addressed the Charter s. 10(b) issue. The trial judge found that during the 16 minutes of time from the commencement of the approved instrument testing until arrest, there was no reasonable opportunity to retain and instruct counsel; a finding that he was entitled to make in the circumstances.
[34] In considering this important issue, the trial judge employed the well-established principles of rights to counsel in matters where approved screening devices are employed and the requirement of the taking of samples forthwith. While the appellant strenuously argues the applicability of the Supreme Court of Canada’s decision in R. v Taylor, 2014 SCC 50, Taylor is a blood sample case and is clearly distinguishable on its own facts and legal application. The jurisprudence regarding rights to counsel being suspended during the use of approved screening devices, within certain parameters, is well established in the jurisprudence with the leading case of R v. Thomsen, [1998] 1 S..R. 640. In my review of the Reasons, the learned trial judge was alive to those critical issues.
[35] The important consideration, however, is not what might have happened, but to what the appellant and all witnesses testified. Regardless, the appellant offered an explanation that he did comply and was cooperative and the officers deliberately impeded his efforts to provide a proper sample. The appellant invites the Court to re-litigate the issues based on a fresh assessment of the video and the transcripts. As an appeal judge, I decline to do so.
[36] There is no doubt that the appellant’s evidence was closely examined through the detailed trial judge’s reasons. Justice Nadel was entitled to conclude that the appellant was not only evasive in his testimony, but had prevaricated. While the trial judge was disinclined to go to every specific reference, there are numerous examples in the transcript that provide support for these findings.
[37] In my view, the trial judge considered the implausibility and internal and external inconsistencies of the appellant’s evidence and was entitled to come to the conclusions he reached. The trial judge properly assessed and dismissed the appellant’s testimony with examples provided as to why this evidence was unreliable. This is in full conformity with the requirement of assessing credibility as long as the whole of the evidence is considered and assessed in the context of W.(D). My review of Nadel J.’s Reasons for Judgment demonstrate an intelligible basis for the verdict, capable of permitting meaningful review and reveal a clear grasp of the live issues before him.
[38] I do not find support for the proposition that the trial judge’s rejection of the appellant’s evidence rises to a misapprehension of the issues and the evidence. These grounds of appeal must fail.
Bias and collusion
[39] In the alternative, the appellant argues that the trial judge was biased and collusion arose through various communications. My take from the appellant’s submissions was that he was denied natural justice and fairness.
[40] Specifically, the appellant submits that the “State is maliciously prosecuting the Appellant from previous matters that were withdrawn in 2011 and continues its vindictive conduct to this day – and the Niagara North Crown office which is literally “in bed” with the Niagara Regional Police are prosecuting out of spite with no interests in Justice.”
[41] As mentioned, the appellant provide voluminous materials. In the Appeal Record, the appellant raised concerns and complaints about various judicial officers and participants, including but not limited to three Superior Court judges, including the Regional Senior Justice, current and former members of the local Crown attorney’s office, police officers and other lawyers.
[42] The essence of these complaints is premised on issues of bias and collusion. It appears that the genesis of these complaints arise from events that predates these offences.
[43] From my review, there is no evidence that any of the particular CBSA officers, police officers or the prosecution lawyer or members of the Crown attorney’s office was implicated in his prior complaints. I agree with the Crown that this issue, at its highest, has little impact on the determination of the charges here and it does not give rise to an error warranting appellate intervention.
[44] I cannot leave this area without addressing the appellant’s specific concerns about the issue of bias as it is particularly alleged against the trial judge. Prior to trial, the appellant sent unsolicited mail directly to Nadel J. with materials comprising the history of his complaints against numerous named individuals and entities, ostensibly alleging a ubiquitous conspiracy against him.
[45] While any unsolicited transmission from an accused to a trial judge in advance of trial is wholly unacceptable, it seems to me that the only reason the litany of materials was sent to Nadel J., (who had no involvement in the numerous prior complains raised by the appellant) was an attempt to create an appearance of bias, with an attempt to engulf the trial judge into this alleged conspiracy.[^2] In addressing the motivation behind this conduct, as Mr. Coppolino ably submits – “[it was] to set up the judge”. I agree that the appellant himself set up the mechanism to potentially influence the trial judge. Not only was this activity totally unacceptable but it demonstrates the lengths to which the appellant will go to satisfy his own interests in furtherance of some alleged conspiracy against him by the state or various stakeholders. It is disconcerting when any litigant would opt to forward information of this nature to the trial judge in advance of trial. This activity cannot be condoned.
[46] That being said, in my opinion, the trial judge did not conduct anything other than a fair and balanced hearing in addressing the appellant’s continual assertions of bias or collusion, elicited to potentially deflect the real issues at trial. While it cannot be stressed enough how the appellant’s actions were egregious and entirely misplaced, fortunately, the appellant’s actions did not have the desired results. Even if these materials had been received, I am satisfied that the learned trial judge was not influenced by any information contained therein and only rendered his judgment based on the evidence.
[47] The appellant also raised the collateral issue of costs that he alleges must flow from the Crown’s conduct in this case including a delay of this appeal.
[48] It is trite law that an appellant must perfect the appeal prior to the hearing begin set. The Superior Court Rules in Summary Conviction Appeal matters provide for a procedure that includes the requirement of the filing of all relevant transcripts. This had not been accomplished prior to the hearing date being set.
[49] Not only is compliance mandatory unless waived by the Court, but the dictates of fairness require that complete transcripts to be served and filed. I note that the appellant’s request for wavier of fees with respect to the production of these transcripts was denied by Sloan J. on May 14, 2015. Indeed, for this appeal, the appellant provided the trial evidence transcripts but did not have the most important transcript served and filed; namely, the trial judge’s Reasons for Judgment, from which an appeal court must, to a large extent conduct its analysis.
[50] On August 14, 2015, at the initial hearing date of this appeal, the appellant was dismissive about the need for such a transcript and the Reasons for Judgment. At the same time, the appellant claimed that the Crown had previously ordered the impugned transcripts way back in November 2014 and had perpetuated a delay of this appeal, to his detriment. It was clear that the appellant postulated a degree of prosecutorial misconduct towards lawyers or staff associated with the St. Catharines’s Crown attorney’s office.
[51] We now know that nothing can be further from the truth. On August 28, 2015, the return date for the hearing of this appeal, when queried by the Court, the appellant explained (without apology) that the impugned transcripts were ordered in November 2014, albeit not by the local St. Catharine’s Crown attorney’s office, rather by the federal Crown attorney (Department of Public Prosecutions). In my view, this submission was utter nonsense.
[52] In fact, in order to advance this case to appeal, the local Crown attorney’s office took it upon themselves to order the transcript of the Reasons for Judgment of September 30, 2014. Clearly, the Crown was not obliged to do so. While there may have been a delay of approximately one month from the receipt of the trial judge’s Reasons to the filing of the respondent’s factum, such a period is entirely understood when considering the summer break period and the Crown’ reasonable actions to assist the appellant in properly perfecting the appeal.
[53] The appellant has not even come close to meeting the criteria for establishing conduct by the state warranting an award of costs. The appellant’s request for costs is denied.
Conclusion
[54] I am not persuaded that the verdict was unreasonable or that Nadel J. misapprehended the evidence or the positions advanced by the parties. There was ample evidence upon which the trial judge could have drawn the reasonable inferences or make his assessments of credibility or specific findings that he did. Justice Nadel’s reasons were articulate and addressed all of the issues in a full and fair manner.
[55] For the aforementioned reasons, I do not find a palpable or overriding error warranting appellate intervention.
[56] My consideration of the entirety of the materials filed and Reasons for Judgment neither supports any claim that Nadel J. was biased nor that the appellant was subjected to a malicious prosecution. In my opinion, the complaint of some judicial or prosecutorial collusion or any alleged misconduct by justice system participants in this case is devoid of merit.
[57] The appeal is dismissed.
A.J. GOODMAN J.
Released: September 9, 2015
COURT FILE NO.:85/14
DATE: 2015-09-09
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AARON WILLIAM LACEY
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice Nadel]
A.J. Goodman J.
Released: September 9, 2015
[^1]: Mr. Fichtner is also known as the appellant, Mr. Lacey.
[^2]: The assertion that Nadel J. was the judicial official who endorsed the withdrawal of charges in May 2011 is of no significance