COURT FILE NO.: SCA 622/14
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADAM ALI
Defendant/Appellant
J. Graham for the Crown
N. Xynnis for the Defendant
HEARD: September 21, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable M. Nelson,
dated July 17, 2014]
RICCHETTI, J.:
THE APPEAL
[1] On July 17, 2014 the trial judge, Justice Nelson, found the Appellant guilty of impaired driving, driving over 80 and driving while prohibited.
[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] Much of the evidence at trial was entered through an Agreed Statement of Fact. However, Mr. Arora, a patron at Pizza Pizza on the night in question also testified.
[5] On August 23, 2013, at approximately 1:30 a.m., a yellow Hummer truck pulled into a plaza parking lot where there was a Pizza Pizza. There are other businesses in the same plaza.
[6] Mr. Arora did not see that it was Mr. Ali who drove the Hummer to the parking lot.
[7] Within a few minutes of the Hummer’s arrival, Mr. Ali entered the Pizza Pizza. Mr. Arora confirmed this.
[8] Mr. Ali placed an order for a slice of pizza. There was a delay. He got into an argument with the employees at Pizza Pizza, causing a disruption at the store and calling staff and customers various names while swearing. At some point Mr. Ali said he was getting something from his car.
[9] Mr. Ali left the Pizza Pizza, went to the passenger’s door of the Hummer truck. Mr. Arora saw this. Mr. Arora saw Mr. Ali fishing for something in the passenger side and then Mr. Ali returned to the Pizza Pizza store with a cell phone. This took about four minutes.
[10] The police officers at the scene found his eyes were red, watery, bloodshot and his breath and person smelled of alcohol. Similar indicia were also observed at the police station.
[11] Upon searching Mr. Ali, the police found the keys to the Hummer.
[12] There were no passengers in the Hummer with Mr. Ali and there were no other passengers or known associates of Mr. Ali in the vicinity.
[13] Mr. Ali lives one kilometer away from the Pizza Pizza.
[14] At approximately 4:00 a.m. and 4:30 a.m., Mr. Ali blew 220 and 217 respectively. The toxicologist estimated that Mr. Ali had between 210 and 255 milligrams of alcohol in 100 millilitres of blood at approximately 2:08 a.m. in the morning.
[15] The only issue at trial was whether the Crown had proven beyond a reasonable doubt that Mr. Ali had care and control of the Hummer truck.
THE GROUNDS OF APPEAL
[16] The Appellant submits that the trial judge erred in finding that the Crown had proven Mr. Ali had care and control of the Hummer truck. The Appellant submits that, as this case was entirely circumstantial, care and control of the Hummer truck by Mr. Ali was not the only reasonable inference to be drawn by this court.
THE LAW
Appellate Review in Summary Convictions Appeals
[17] 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 against a conviction:
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)).
[18] 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)).
[19] 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
[20] 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
[21] 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 CanLII 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 CanLII 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]
[22] 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.
REASONS FOR CONVICTION
[23] The trial judge’s analysis on the “care and control” issue with respect to the driving prohibition as it related to driving at 1:30 a.m.:
The circumstantial evidence, namely: the time of day, 1:30 a.m.; there was only one yellow Hummer in the parking lot; Mr. Ali came into the restaurant a few minutes after the Hummer pulled into the lot, he was seen opening the passenger door of the Hummer some 15 minutes later and the keys to the Hummer were found in Mr. Ali’s pocket; Mr. Ali was not in the company of anyone else; and Mr. Ali’s home address was approximately one mile away – all lead to only one reasonable conclusion and that is that Mr. Ali drove the car into the parking lot at around 1:30 on the day in question. I am satisfied of this fact on the basis of beyond a reasonable doubt.
[24] This was sufficient to establish the driving while prohibited count.
[25] The trial judge then correctly set out that he had to determine whether Mr. Ali had care and control of the Hummer at approximately 2:08 am. The trial judge specifically referred to R. v. Boudreault 2012 SCC 56, [2012] SCJ No. 56 as setting out the law on care and control.
[26] The trial judge then identified that he had to determine whether: “Mr. Ali engaged in an intentional course of conduct associated with his vehicle and that in the circumstances there was a realistic risk of danger to persons or property.”
[27] The trial judge goes on to say:
I have no difficulty finding that in the circumstances of this case, on the basis of beyond a reasonable doubt, that at 2:08 a. m. there was a realistic risk of danger that Mr. Ali would drive his car. I make this fining because he drove to the Pizza Pizza restaurant, it was 2:08 in the morning, he lived a kilometre away, the very nature of his stop at the restaurant was transient, given that Pizza Pizza is a fast food establishment.
Having found there was a realistic risk of danger, the remaining question becomes whether he engaged in a course of conduct associated with the vehicle. In the circumstances of this case, I am satisfied beyond a reasonable doubt that he did engage in a course of conduct with respect to the vehicle. He drove the vehicle to the restaurant, the very nature of his stop was transient one to pick up pizza, he retained his keys, he was alone, he exerted control over his vehicle by retrieving his phone from the vehicle.
However, there is more [than just possession of keys] in this case. When all of the facts and inferences are put together we have the situation this section is designed to catch. After all, care and control offences by definition are anticipatory. Generally, it is the risk of future driving while impaired or over 80 that is criminalized. In this case, we have a very realistic risk that Mr. Ali would drive a vehicle he never relinquished control over from the time he drove into the Pizza Pizza restaurant until he interacted with the police.
ANALYSIS
[28] Essentially, the Appellant suggests that there could have been other persons connected with the Hummer who went to one of the other stores or that Mr. Ali might have walked home rather than driven. The Appellant also suggests that the time difference between the 1:30 a.m. driving and the conclusion of care and control at 2:08 a.m. is a sufficient break to break the inference that Mr. Ali continued to have care and control of the Hummer at 2:08 a.m.
[29] I am satisfied that the findings of fact by the trial judge were based on clear and convincing evidence.
[30] The Appellant correctly identifies the legal principle that “an inference must be based on proven facts, not conjecture or speculation”. It is also correct that where the Crown’s case is based on circumstantial evidence, the trial judge must be satisfied that the only reasonable inference to be drawn from all the circumstantial and other evidence is one which supports the finding of guilt. Otherwise, the trial judge must acquit.
[31] The issue is whether there was some other “reasonable inference” which could be drawn from the judge’s circumstantial evidence which is inconsistent or did not place Mr. Ali in the care and control of the Hummer at 2:08 a.m. In my view, there is not.
[32] With respect to the possibility of “other persons” being the driver of the Hummer, the Agreed Statement of Fact provided that there was no one with Mr. Ali as a passenger or anyone else he was associated with in the vicinity that night. In my view, it would have been speculative and inconsistent with these agreed facts for the trial judge to conclude there was another reasonable inference available that someone drove and would drive the Hummer. I reject this submission.
[33] With respect to the possibility of Mr. Ali walking home, again this is speculative. Further, having found Mr. Ali drove to Pizza Pizza and was there for a transient stop, I am not persuaded that it would be a reasonable inference was available on the evidence that Mr. Ali would walk home. I reject this submission.
[34] With respect to the “break in time” submission, I am satisfied given the circumstances of what was occurring, namely, Mr. Ali waiting for his slice of pizza and the short period between 1:30 a.m. and 2:30 a.m., there are no facts which would have suggested there was a break in Mr. Ali’s care and control of the Hummer or that the inference he continued to have care and control of the Hummer was no longer the only reasonable inference. Mr. Ali continued to have exercise control of the Hummer when he used the keys to open the passenger door. There is simply no evidence of anyone else having or taking care and control of the Hummer during this period of time.
[35] I reject this submission.
CONCLUSION
[36] I am satisfied that the trial judge’s findings of fact are fully supportable and the conclusions arrived at in support of the conviction were reasonable and cannot be said to be clearly wrong. I am further satisfied that there was no other reasonable inference which was available on the evidence before the trial judge which would have negated Mr. Ali’s driving of the Hummer at 1:30 am and care and control of the Hummer at 2:08 am. In other words, this was a verdict on all three counts which a properly instructed jury, acting judicially and reasonably, could have come to.
[37] For the reasons set out above, the appeal is dismissed.
Ricchetti, J.
Released: September 23, 2015
COURT FILE NO.: SCA 622/14
DATE: 20150923
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ADAM ALI
REASONS FOR JUDGMENT
[ON APPEAL FROM THE JUDGMENT OF THE HONOURABLE M. NELSON, DATED july 17, 2014]
RICCHETTI J.
Released: September 23, 2015