R. v. Pozniak, 2015 ONSC 58

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

CITATION: R. v. Pozniak, 2015 ONSC 58

COURT FILE NO.: SCA(P) 700/13

DATE: 20150105

B E T W E E N:

HER MAJESTY THE QUEEN

Colin Henderson, for the Crown/Respondent

Respondent

• and -

ANDREI POZNIAK

Michael Simrod, for the Appellant

Appellant

HEARD: December 19, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of H.K. Atwood J., dated October 30, 2013]

Justice Thomas A. Bielby

1Andrei Pozniak (the appellant) appeals from the judgment of Atwood J. of the Ontario Court of Justice, in Brampton, who, on the 30th day of October 2013, convicted the appellant of being impaired and having the care and control of a motor vehicle contrary to section 253(1)(a) of the Criminal Code of Canada and for refusing to provide a breath sample, contrary to section 254(5) of the Code.

FACTS SUMMARY

2A civilian witness, Aravinthan Kanagrarthiam, while driving his own motor vehicle, observed a tractor trailer (the truck) driving in an erratic manner. He called 911 and followed the truck into the Flying J Truck Station.

3The witness testified that the truck pulled into the gas pump lanes. While the witness did not actually see anyone exit from the truck, he did observe a male, the appellant, trying to put a card into a fuel pump adjacent to the truck.

4Mr. Kanagrarthiam testified that the appellant was unstable on his feet and was swaying side to side. He was struggling to find and insert his card into the credit card slot on the pump.

5When the police arrived, the witness pointed out the man as the driver and then left the scene.

6The first police officer on the scene was PC George Kerr and he observed a blue and white truck being refuelled.

7A second officer, PC Natt arrived on the scene and he observed the truck being refuelled.

8Both officers described the appellant as having red-rimmed eyes, unsteady on his feet and with slurred speech.

9PC Natt made a demand for a breath sample into his approved roadside screening device and had the appellant sit in the back of the cruiser. The appellant did not provide a suitable sample.

10The appellant was arrested and transported to a police division for a breathalyzer test. The qualified breath technician on duty was PC Okposio who again demanded a breath sample which the appellant refused to provide. PC Okposio also noted the signs of impairment as described above.

11No keys to the truck or vehicle registration or insurance particulars were ever found on the defendant or elsewhere.

GROUNDS FOR APPEAL

12The issue for this appeal is not in regards to the appellant being impaired or the operation of a truck in an erratic manner, but rather is an issue of identification. The appellant did not challenge the findings of the trial judge that the truck was driving in a manner consistent with impaired driving or that the appellant was impaired.

13The appellant submits that the trial judge erred in ruling that the only reasonable inference to be drawn is that the male refuelling the truck, the appellant, was the operator of the truck or that he had care and control of it. It is submitted that the civilian witness did not see the appellant driving the truck nor did he see the appellant exit the cab of the truck.

14The appellant submits that the evidence at the trial was all circumstantial and that the trial judge failed to consider any other reasonable inference that could be drawn. Counsel relies on the rule in Hodge’s case claiming the rule is still relevant notwithstanding that the broader rule is whether guilt has been proven beyond a reasonable doubt.

15In regards to the rule, counsel for the appellant submits that, if the trier of fact can conclude that any plausible explanation besides a scenario in which the appellant is guilty fits the circumstantial evidence, the appellant must be acquitted.

16It is submitted that the trial judge erred in not considering whether the man refuelling the truck was a gas station attendant or a passenger in the truck and submits that either scenario is a reasonably plausible explanation and inference that can be drawn.

17It is submitted by the appellant that the inference drawn by the trial judge was a matter of conjecture or speculation and not a reasonable inference on the evidence in its totality.

18The Crown argues that any other inference on the facts, other than the one drawn by the trial judge, would be an inference based on conjecture or speculation. There is no evidence in regards to a possible passenger. It is pointed out by the Crown that, if there was another person who was the driver, then why was it necessary for an employee at the truck stop to move the tractor trailer after the appellant was arrested. Further, the trial judge determined that the gas pumps were self-service and ruled that the man refuelling the truck, the appellant, must have been associated with the truck.

19Counsel for the respondent Crown submits that the trial judge was very alive to the central role that the identity of the driver played in the trial. It is submitted that the trial judge considered the other possible inferences that can be drawn and rejected them for lack of evidence.

20The trial judge concluded that the only reasonable inference that could be drawn from the evidence was that the appellant was the driver and that he had care and control of the truck.

21The Crown submits that the evidence regarding the erratic manner in which the truck was operated was consistent with the impaired condition of the appellant that was observed by both police officers.

ANALYSIS

22There is an issue in regards to the testimony of PC Kerr who testified that he only spoke to PC Natt when on the scene. Natt, however, testified that it was Kerr who told him he had spoken to the civilian witness who identified the appellant as the driver. The trial judge essentially ruled that the evidence of PC Kerr was unreliable. He found that Kerr did not do a good job of note taking nor did he have much independent memory of the events.

23The balance of the evidence was sufficient, in the trial judge’s opinion, for him to convict the appellant.

24The civilian witness observed the appellant attempting to put a card into the slot on the pump which is consistent with an inference that the appellant was attempting to activate the pump by providing a method of payment. Thereafter, the police observed the appellant refuelling the truck.

25It considering other possible inferences, said inferences must be carefully distinguished from conjecture or speculation (R. v. Griffin and Harris (2009) 2009 SCC 28, 244 C.C.C. (3d) 289 (SCC) at paras. 33-34).

26R. v. Bui 2014 ONCA 614 is a recent decision of the Ontario Court of Appeal which dealt with the law regarding circumstantial evidence and inferences. At paragraph 19, the Court referenced R. v. McIver 1965 CanLII 26 (ON CA), [1965] 4 C.C.C. 182, para 7, in which the court set out the rule in Hodge’s Case as follows:

The rule in Hodge’s case…was that before [the jury] could find a prisoner guilty, they must be satisfied not only that the circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rationale conclusion than the prisoner was the guilty person.

The rule makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and the conclusions alternative to guilt of the accused must be rational conclusions based on inference drawn from proven fact. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one.

27The Crown is not required to disprove hypothetic theories not grounded on evidence (para. 23).

28The Court of Appeal in Bui, at paragraph 25, referenced its own decision in R. v. Robert (2000) 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330, at paragraph 15, in which it stated,

It is clear that the rule in Hodge’s Case is not an inexorable rule of law in Canada. Further, the rule’s reference to requiring proven facts to ground alternative explanations is problematic because there is no obligation on an accused to prove any facts. Rather, an accused is entitled to an acquittal if there is a reasonable doubt on all the evidence, a conclusion sustainable at a threshold significantly lower than a reasonable inference from proven facts.

29From para 28 of the Bui decision, I quote:

Whether a reasonable doubt exists must be assessed based on the totality of the evidence, not just based on proven facts. While the evidence at trial may not have been in dispute, the inferences capable of being drawn from that evidence were very much in dispute.

30What I take from the above is that the appellant’s guilt must be proven beyond a reasonable doubt. And if there is a reasonable inference that can be drawn apart from one of guilt, a reasonable doubt exists.

REFUSING TO PROVIDE A BREATH SAMPLE

31In regards to the conviction for refusing a breath sample demand, the appellant refused to provide a breath sample on two occasions, the second demand made at the police station by PC Okposio being the refusal upon which the charge was laid. A demand for a breath sample must be based on reasonable and probable grounds that the person who has alcohol in his body has within the preceding three hours operated a motor vehicle or had care and control of a motor vehicle.

32It is submitted by the Crown that, notwithstanding whether or not the Crown has proven beyond a reasonable doubt that the appellant was driving the truck, the police, specifically PC Okposio, had reasonable and probable grounds to demand a breath sample.

33PC Natt testified that the appellant admitted to him that the truck was his and he was driving it. While this evidence cannot be used to determine identity beyond a reasonable doubt, it can be used in regards to reasonable and probable grounds.

34Given all of the evidence as to the erratic driving of a truck that was followed into the truck stop, the fact that the appellant, who exhibited signs of impairment, was refuelling it and, given the admission noted above, clearly, the police had reasonable and probable grounds to make the demand. PC Okposio noted for himself the signs of impairment exhibited by the appellant and was briefed by PC Natt as to what he observed at the truck stop.

35The Crown need not prove beyond a reasonable doubt that the appellant was the driver in order to argue that reasonable and probable grounds for the demand existed.

36The trial judge was correct when he ruled that the reasonable and probable grounds were overwhelming (pg. 111).

37Accordingly, the appeal as to the conviction under section 254(5) of the Code is dismissed.

IMPAIRED DRIVING

38In regards to the identity issue, I have concluded that the judge made no error in finding that the appellant, beyond a reasonable doubt, was the driver of the tractor trailer which was observed driving in an erratic manner.

39The trial judge noted correctly that the rule in Hodge’s Case was simply one way of describing the overall test, which is whether the Crown has proved the guilt of the appellant beyond a reasonable doubt (p. 102).

40Reasonable doubt must be determined on the totality of the evidence (p. 103).

41The civilian witness observed the truck and followed it into the truck stop. When he got to the pump area, the appellant was seen trying to put his card into the pump. The trial judge concluded the appellant was trying to pay for gas at a self-serve pump (p.105).

42The civilian witness told the police that the appellant was “the guy from the truck”.

43The evidence suggesting impairment in regards to the erratic movements of the truck on the highway were consistent with the level of impairment exhibited by the appellant at the pump (p. 117).

44The trial judge found that there was no other reasonable explanation as to why the appellant was refuelling the truck other than he had care and control of it (pg116).

45The gas area of the truck stop was found to be a self-serve facility, a finding inconsistent with the suggestion that the appellant could have been a gas attendant (pg. 129).

46There was no evidence of another person associated with the truck. The evidence revealed that someone associated with the truck stop was required to move the truck after the appellant was arrested. As noted by the Crown, had the appellant been a passenger, the driver would have been available to move the truck.

47A reasonable inference, other than the appellant had care and control of the truck, would be matter of conjecture or speculation and would not raise a reasonable doubt.

The trial judge stated, at page 130 of the transcript of October 30, 2013: It is, in my view, that the only logical inference is the person refuelling the truck, because of the location and the time and what the person is doing, is associated with that truck. Is associated with that truck, which I accept is the truck that was driving badly out on the roads, because of all the circumstances taken together. If, if they’re taken one-by-one then there is no evidence that is sufficient, in my view, to establish a circumstantial case, but if all of that evidence taken together, in my view, there is only one logical inference and that is that this is the truck that was out on the road, this is the person that was driving that truck out on the road and that he was driving while his ability to operate a motor vehicle was impaired by alcohol.

48At page 131, the trial judge stated:

I agree with the Crown Attorney Greco that if the evidence is taken as a whole, albeit circumstantial, that there is no other reasonable inference except the one that I’ve set out, that is, that the accused was driving that truck. And, of course, the law is clear that any person driving a truck has care and control of it. As the Crown has established that he was driving the truck at the portion of time when he was observed by Mr. Kanagrarthiam, it’s my view they have proved the matter beyond a reasonable doubt.

49The trial judge made no error in his analysis set out above and had the evidence before him from which he could draw the facts necessary to support his decision.

50The appeal on the conviction of the charge of impaired driving under section 253(1)(a) is dismissed.

Justice Thomas A. Bielby

Released: January 5, 2015

CITATION: R. v. Pozniak, 2015 ONSC 58

COURT FILE NO.: SCA(P) 700/13

DATE: 20150105

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT