REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable M. Greene,

dated December 4, 2013]

RICCHETTI, J.:

THE APPEAL

[1] On December 4, 2013 the trial judge, Justice Greene, found the Appellant guilty of impaired driving and not guilty of driving over 80.

[2] The Appellant appeals.

[3] After hearing submissions, I dismissed the appeal with reasons to follow. These are those reasons.

SUMMARY OF THE EVIDENCE AT TRIAL

[4] On December 10, 2011 just after 6:00 p.m., the Appellant was driving a pickup truck westbound on Hwy 401.

[5] Ms. Sikorska, an occupant in a vehicle following the Appellant’s pickup, saw the pickup driving erratically. A video of the Appellant’s pickup truck weaving from side to side over-crossing the lane markings was taken. Ms. Sikorska called the police. The Appellant’s pickup truck ran into another vehicle hitting the other vehicle’s passenger side. The accident was also caught on the video taken. After the accident Ms. Sikorska saw a male sitting in the driver’s seat of the pickup. She saw Mr. Randall exit the pickup truck and go over to the owner of the vehicle which he had just run into and asked the driver for a cigarette. Two police officers, P.C. Freitas and P.C. Jameson, arrived within minutes. Ms. Sikorska told P.C. Frietas that she had witnessed the erratic driving and had taken a video of the driving and accident. She told the officer that she thought the driver of the pickup was drunk.

[6] P.C. Freitas arrived at the accident scene. The Appellant admitted he was the driver of the pickup. P.C. Freitas spoke to Ms. Sikorska, who relayed what she had seen and videotaped. P.C. Freitas went to speak with Mr. Randall. P.C. Freitas saw that Mr. Randalls’ eyes were watery and glassy. He also smelled alcohol coming from Mr. Randall’s mouth. As Mr. Randall walked with P.C. Freitas, Mr. Randall stumbled into him on two occasions within a very short distance. P.C. Freitas formed the opinion that he had reasonable and probable grounds to believe that Mr. Randall was impaired due to alcohol and decided to arrest him for operating a motor vehicle while being impaired and demand a sample of his breath. P.C. Freitas brought Mr. Randall to the police station and, after Mr. Randall spoke to duty counsel, Mr. Randall was brought to a breathalyser analyst for a breath sample. By the time the breath samples were taken, more than two hours had elapsed from the time of the arrest.

[7] Constable Ng, the breathalyser analyst testified that he noticed a strong odour of alcohol on Mr. Randall’s breath, a red, flushed face, red rimmed eyes and good speech. Approximately 3 hour and 20 minutes after the accident, Mr. Randall’s breathalyser results showed approximately 129-135 milligrams of alcohol in 100 milliliters of blood.

[8] The Crown also called Mr. Butler, the driver of the vehicle which was hit by Mr. Randall’s pickup. Mr. Butler only noticed a cut on Mr. Randall’s nose.

[9] P.C. Jameson noticed that Mr. Randall was not walking in a straight line and was unsteady. He stated that Mr. Randall was not talkative. He did not observe any slurred speech by Mr. Randall. He considered Mr. Randall’s behaviour at the scene to be unusual. He found an empty bottle of alcohol was found under the front seat of the motor vehicle.

THE GROUNDS OF APPEAL

[10] The Appellant submits that the trial judge erred in failing to find that the Crown had failed to prove, beyond a reasonable doubt, Mr. Randall was impaired at the time of the accident.

[11] The Appellant also submits that the trial judge reversed the onus on a s.8 Charter application, namely, that the arresting officer did not have reasonable grounds for demanding a sample of his breath. I note that this ground of appeal is not set out in the Notice of Appeal dated December 17, 2013 but it will deal with this issue in this appeal.

[12] There are two sets of reasons to be considered. The first relate to the trial judge’s dismissal of Mr. Randall’s Charter application (November 15, 2013). The second relate to the conviction (December 4, 2013).

[13] Both sets of reasons are detailed and explain the trial judge’s findings of fact and basis upon which she acquitted Mr. Randall on one charge and convicted Mr. Randall on another charge.

THE LAW

Appellate Review in Summary Convictions Appeals

[14] By virtue of s. 822(1) of the Criminal Code, the statutory grounds of appeal set out in s. 686 apply to summary conviction appeals. Under that section, there are three statutory grounds of allowing an appeal where it finds a:

a) Unreasonable decision (s. 686(1)(a)(i));

b) Wrong decision (s. 686(1)(a)(ii)); and

c) Miscarriage of justice: (s. 686(1)(a)(iii)).

[15] There are three statutory grounds to dismiss an appeal and uphold a conviction:

a) No grounds or no substantial wrong (ss. 686(1)(b)(ii) or (iii));

b) Proper conviction on one count (s. 686(1)(b)(ii) and s. 686(3)); and

c) No prejudice – procedural irregularity (s. 686(1)(b)(iv)).

[16] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision, if:

a) it cannot be supported by the evidence; or

b) it is clearly wrong in law; or

c) it is clearly unreasonable; or

d) there was a miscarriage of justice.

DEFERENCE TO A Trial Judge`s Factual findings

[17] A trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference by the reviewing court. It is not the role of the appellate court to retry the case and reverse findings of fact that were not favourable to the Appellant. In R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 (S.C.C.) the Court set out that “the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellant review.”

Trial Judge`s Reasons to be read as a whole

[18] The trial judge`s reasons must be read as a whole and should explain how the judge arrived at the particular decision. In R. v. G.W., 1996 427 (ON CA), [1996] O.J. No. 3075 (O.C.A.) the Court stated at para. 66:

In addition, I see nothing in the trial judge's reasons that would suggest that she reversed the burden of proof. As Doherty J.A. observed in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 at p. 525 when he considered a similar argument:

In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she has made that decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial ... In cases like this, when the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed. ... Reasons for judgment are given after the trial judge has reached the end of that journey and explain why he or she has arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged by the trial judge in reaching a verdict. [Emphasis added]

[19] The Supreme Court in R. v. G.(L.) 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.) made the following comment on a review of a trial judge’s reasons:

[19] This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge's responsibility for weighing all of the evidence. A trial judge's language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. In re-examining the evidence piece by piece, the Court of Appeal in this case confused the need for sufficiency of reasons with the examination of sufficiency of the evidence, the latter being central to the disposition of the case in Burke, Burns and R. (D.) on which it relied. In our view the reasons were sufficient. In any event, any consideration of the sufficiency of the evidence had to be founded on consideration of all of the evidence and especially the justifications for all findings of credibility, including those referable to the child and witnesses who testified in support of her, not just referable to the accused and those supporting him.

Misapprehension of the Evidence to be material

[20] A misapprehension of evidence warranting appellate intervention refers to a failure on the part of the trial judge 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 the evidence that occupy an essential part in the narrative of the judgment and in the reasoning process upon which a conviction is founded.

[21] This test was first set out by Justice Doherty in R. v. Morrissey, (1995) 1995 3498 (ON CA), 97 C.C.C. (3d) 193, and subsequently adopted by the Supreme Court of Canada in a number of other cases. In Morrissey, Justice Doherty noted:

… Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.

High degree of defence to Credibility findings by the trial judge

[22] The appellate court must defer to the trial judge's credibility findings, unless a palpable or overriding error can be shown. The reasons taken as a whole must demonstrate this error.

[23] The Supreme Court dealt with a trial Judge’s assessment of credibility in R. v. G.(L.) 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.):

[10] There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 4, where this Court stated that "it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can ... overturn the trial court's verdict". With respect to the credibility of witnesses, the same standard applies. In R. v. Lavoie, [2003] Q.J. No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge's assessment of the credibility of witnesses "will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error" (citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).

[20] Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[24] In R. v. Lazarska 29 M.V.R. (4th) 218 (S.C.) Justice Hill noted at paragraph 23:

The appellant submitted that it would be "extremely dangerous" to attribute to Ms. Lazarska's evasiveness or falsity simply on the basis of how her answer unfolded. It is said the trial court's conclusion in this respect was unreasonable. The trial judge enjoyed the incalculable advantage of seeing and hearing this critical evidence. Deference to the trial court, based in part on its advantage in seeing and hearing the witnesses, ordinarily forecloses appellate reversal of credibility findings: Regina v. Myerscough, 2001 8573 (ON CA), [2001] O.J. No. 2867 (C.A.) at para. 12-13 per Catzman J.A.; Regina v. P.(C.), [2001] O.J. No. 342 (C.A.) at para. 12 per Catzman J.A.; Regina v. W.(G.) (1996), 1996 427 (ON CA), 93 O.A.C. 1 (C.A.) at 5 per Osborne J.A. (as he then was). In the present case, the trial judge was entitled to draw the inference he did. It cannot be said the conclusion reached is unreasonable or unsupported.

ANALYSIS

Charter Application Dismissal.

[25] The Appellant submitted that P.C. Freitas did not have reasonable and probable grounds to demand a breath sample. The Appellant submits that the trial judge reversed the onus on the Charter application because the demand for a breath sample was a warrantless search and, as such, the onus is on the Crown to establish that search was in accordance with law and conducted reasonably.

[26] The Appellant relies entirely on one sentence at the end of paragraph 43 where the trial judge states: “I therefore find that the Applicant has not established that P.C. Freitas did not have appropriate grounds to arrest Mr. Randall for impaired driving and to make the breathalyser demand.”

[27] There is no merit to this submission.

[28] The trial judge’s reason very carefully considered all the evidence and applied the appropriate legal test. The preceding three paragraphs of the trial judge’s reasons demonstrate this point:

[41] In light of my findings of fact noted above, I am satisfied that objectively P.C. Freitas had the necessary grounds to arrest Mr. Randall for impaired driving and to make the breath demand. Mr. Randall had just caused an accident, there was obvious explanation for the accident, the officer detected an odor of alcohol emanating from Mr. Randall’s mouth, his eyes were watery and glossy, and Mr. Randall was somewhat unsteady on his feet. In my view, all these factors combined meet the threshold of reasonable and probable grounds to believe that Mr. Randall was operating a motor vehicle while his ability to do so was impaired by alcohol.

[42] Whether or not P.C. Freitas had the requisite subjective grounds is a little more complicated. On the date of the arrest, when advising P.C. Ng about his grounds for the arrest, P.C. Freitas stated that he had reasonable grounds to believe that Mr. Randall had alcohol in his body. This not the test for an arrest for impaired driving nor does it provide for the requisite ground to make a breath demand.

[43] At trial however, P. C. Freitas testified that he had reasonable and probable grounds to believe that Mr. Randhall had alcohol in body and that he was impaired at the time of driving. There was no cross examination of P.C. Freitas about what he thought the test was for arresting an individual for impaired driving or any suggestion to him that his evidence in examination in chief was incorrect. When I consider P.C. Freitas’ evidence as a whole on this point, I find that he did in fact subjectively believe that Mr. Randall was operating a motor vehicle while impaired by alcohol.

[29] When read as a whole, the trial judge properly determined that P.C. Freitas had reasonable and probable grounds to arrest Mr. Randall for impaired driving. This was a lawful arrest.

[30] The trial judge’s reference to the Appellant’s failure to “establish” that P.C. Freitas did not have probable grounds to demand a breath sample is in error. The onus to establish probable grounds was clearly on the Crown.

[31] However, I have no hesitation concluding that the same evidence which the trial judge relied on to establish reasonable and probable grounds to arrest Mr. Randall on the impaired charged was sufficient to meet the Crown’s onus to establish “reasonable grounds” under the Criminal Code provisions for making a demand for a breath sample. There was no miscarriage of justice.

[32] Even if the trial judge erred with respect to the onus for the demand of a breath sample, the trial judge acquitted Mr. Randall on the over 80 count. As a result, even if there was an error, there was no miscarriage of justice with respect to the conviction in question – the impaired driving conviction.

The Conviction

[33] In addition to the reasons on the Charter application, the trial judge gave extensive oral reasons for convicting Mr. Randall of the impaired charge and acquitting him on the blowing over charge.

[34] Essentially, the Appellant attacks the factual and credibility findings made by the trial judge.

[35] Let me deal with each of the submissions made by Mr. Randall’s counsel:

Inconsistency with the finding on the blowing over charge

[36] The Appellant points to the fact the trial judge acquitted on the blowing over charge and suggests that this is an inconsistency with the trial judge finding beyond a reasonable doubt that Mr. Randall was impaired while driving.

[37] The trial judge identified the blowing over charge issue as:

Has the Crown, as they were not able to rely on the presumption in this case, given the evidence before the Court, proven beyond a reasonable doubt that Mr. Randall’s blood alcohol concentration was over 80 milligrams of alcohol in 1000 milligrams [millilitres] of blood at the time of driving.

[38] In addition to the evidence set out above, the trial evidence included the testimony of two expert witnesses (Dr. Corbett and Dr. Bugyra) called to testify because the breath samples taken from Mr. Randall more than two hours after his arrest. Essentially, these expert witnesses were to testify as to the concentration of alcohol in Mr. Randall’s blood at the time of the accident (ie when last he drove) approximately three hours, twenty minutes earlier. Dr. Corbett concluded that an inference could be drawn that Mr. Randall’s alcohol level was "well over" 80 milligrams at the time of the accident. Dr. Bugyra concluded that Mr. Randall’s alcohol level at the time of driving was between 135 and 190 milligrams. However, this was subject to an assumption that Mr. Randall had not consumed a large quantity of alcohol near the time of the accident. The trial judge found:

In other words, both Dr. Corbett and Ms. Bugyra agree that if Mr. Randall had a number of drinks, either 4.5 or 5 and a third within fifteen minutes of driving, then his blood alcohol concentration at the time of driving would be under 80 milligrams of alcohol in 100 millilitres of blood.

[39] As a result, if there had been excessive drinking 15 minutes before or up to 15 minutes after the accident, the evidence was that this could have accounted for the higher blood alcohol level found some 3 hours and 20 minutes later with the breathalyser. The trial judge found that there was no direct evidence that Mr. Randall had drunk alcohol 15 minutes prior to the accident or 15 minutes after the accident. “All I have before me is an empty bottle of Crown Royal found in a truck”. The trial judge went on to state:

I appreciate that there are substantial indicia of impairment at the scene, but one can be under .80, that is have a blood alcohol in 100 millilitres of blood and still be impaired. So impairment alone does not establish that one is over .80 at the time of driving.

[40] As a result, the trial judge was not satisfied that the Crown had proven beyond a reasonable doubt that Mr. Randall had a blood alcohol level of 80 milligrams or more of alcohol in 100 millilitres of blood at the time of the accident - when Mr. Randall last drove.

[41] I see nothing inconsistent with the trial judge’s finding that the Crown did not prove beyond a reasonable doubt the charge of over .80 while still concluding that the Crown had proven beyond a reasonable doubt that Mr. Randall was impaired when driving. The trial judge correctly understood and applied the distinction between these two offences which the Appellant now seeks to blur.

[42] Contrary to the Appellant’s submission, the “logic” which led to the dismissal of the over 80 charge does not mean that the same “logic” results in a dismissal of the impairment charge or that it raises a reasonable doubt as to the impairment.

[43] This distinction between these two separate offences was properly described in R. v. Rambajan, 2005 3370 (ON SC):

[27] The issue of possible inconsistency in the verdicts on counts #1 and #2 depends upon a consideration of the nature of the offences alleged in the respective counts, the evidence adduced in support of the charges, and the circumstances upon which the acquittal was based.

[28] In my view, the offences of ‘impaired’ and ‘over 80’ are distinct and different offences. A person may be found guilty of one but acquitted of the other. It is not a defence to a person who is discernibly impaired that s/he is under the ‘80’ limit used for breathalyser purposes. Both offences are directed at the same social evil, that is, the risk to the public through drivers of vehicles impaired by the use of alcohol.

[29] However, the ‘over 80’ offence is meant to deter people from running an unreasonable risk to others that their abilities may be impaired in a way that is not easily detected.

[30] It is not uncommon for a person to be acquitted in respect of a charge of impairment but nevertheless be convicted of blowing ‘over 80’. See for example R. v. Casson (1976), 1976 ALTASCAD 222, 30 C.C.C. (2d) 506 (Alta. S.C. (A.D.)).

[31] A person who blows ‘over 80’ may not be impaired; conversely, a person who blows less than ‘80’ may still be factually impaired. While the latter situation is less likely, it is not inconceivable. The offence of impaired operation of a motor vehicle contrary to s. 253 (a) is made out by proof of any degree of impairment ranging from slight to great. There is no requirement of proof of a marked departure from normal behaviour. The issue of impairment depends upon a factual determination and is one for the trier of fact. R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), appeal to S.C.C. dismissed with brief reasons (1994), 1994 94 (SCC), 18 O.R. (3d) 800.

[44] I see no appealable error raised by this submission.

Failure to properly weigh evidence of the lack of impairment

[45] The Appellant takes issue that certain parts of the evidence were not accepted by the trial judge or given sufficient weight.

[46] For example, the Appellant suggests that the “conduct” evidence which the trial judge relied on for impairment was equally consistent with “conduct” arising from the accident. This is mere speculation that the accident was so violent as to cause this “conduct”. Further, the evidence of the erratic driving occurred before the accident. The smell of alcohol on Mr. Randall’s breath did not occur because of the accident. The trial judge was entitled to consider all of the evidence, accept all, none or some of witness’ evidence, and make findings of fact. I cannot say that the trial judge, having had the significant benefit of seeing the witness testify, made an appealable error. The trial judge made a finding of fact as to what caused the “conduct” and there was sufficient credible and reliable evidence to support the trial judge’s finding of fact.

[47] The Appellant points to “other” possible evidence not accepted or dealt with by the trial judge as consistent evidence which should have raised a reasonable doubt. Essentially, the Appellant would have this court review the entire evidence, make its own findings of fact and come to its own conclusion as to the sufficiency of that evidence to meet the Crown’s onus.

[48] I am satisfied there was clear, convincing evidence to support the trial judge's findings of fact. There was a reasonable basis upon which the trial judge made her findings of fact. The trial judge's findings of fact deserve deference. There was no misapprehension of the evidence let alone, any material evidence.

[49] There was no appealable error raised by this submission.

Credibility findings of P.C. Freitas and Ms. Sikorska’s evidence

[50] The Appellant points to various isolated parts of the testimony of these witnesses and attacks their credibility by pointing to the trial judge’s failure to note alleged inconsistencies.

[51] A trial judge is not required to point to every piece of evidence and explain why they rejected it. However, it was clear that the trial judge accepted the vast majority of the evidence of Ms. Sikorska and P.C. Freitas.

[52] The trial judge's credibility findings deserve deference. The Appellant has not established that the trial judge committed a palpable and overriding error.

[53] This submission has no merit.

CONCLUSION

[54] I am satisfied that the trial judge’s findings of fact are fully supportable and the conclusion arrived at were reasonable and cannot be said to be clearly wrong. For the reasons set out above, the appeal is dismissed.

Ricchetti, J.

Released: September 23, 2015

COURT FILE NO.: SCA 777/13
DATE: 20150923

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
JORDAN RANDALL

REASONS FOR JUDGMENT
On APPEAL FROM THE JUDGMENT OF THE HONOURABLE M. GREENE, DATED DECEMBER 4, 2013

Ricchetti, J.

Released: September 23, 2015