ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 18/15

DATE: 20150925

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VOLODYMYR BURKO

Defendant/Appellant

E. O’Marra for the Crown

M. Halfyard for Mr. Burko

HEARD: September 23, 2015

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable A. Cooper,
dated January 26, 2015]

Ricchetti, J.:

THE APPEAL

1On January 26, 2015 the trial judge, Justice Cooper, found the Appellant guilty of impaired driving (care and control).

2The Appellant appeals the conviction.

SUMMARY OF THE EVIDENCE AT TRIAL

3On December 12, 2012, the police came across a parked car on Thompson Road at 3:20 a.m. – not fully off the road. The road was a dead end. The car’s lights were on and the engine running. One window of the car was slightly open. Shining a spotlight on the car by the police officer did not awaken the driver. The police officer, Cst. Broderick, put on his cruiser's emergency lights and approached the car. Still, there was no movement from inside the car. The police officer saw a pool of fluid, identified as urine, just outside the car. The driver was asleep. Mr. Burko was the driver of the car. As he sat in the car sleeping, Mr. Burko’s zipper on his pants was undone. The police officer, despite knocking and speaking loudly through the partially open window, had difficulty awakening Mr. Burko. Mr. Burko woke up several times but fell asleep again. Mr. Burko was asked for his driver’s license. He was unable to find it. Mr. Burko was asked to turn the car engine off but, instead, Mr. Burko stepped on the gas before doing so. Mr. Burko was disoriented and unsure of what was happening. Mr. Burko was so unsteady that he needed the police officer to help him get out of the car. Mr. Burko stumbled. The police officer smelled alcohol on his breath, his eyes were bloodshot and watery.

4Mr. Burko testified he told the police officer he had consumed no alcohol that day. He testified that he had gone to Ottawa that day to buy shoes for the business and was returning home. Mr. Burko suggested that he would have left Ottawa at around 10:30 p.m. or 11:00 p.m. the implication being that he had had no time to consume alcohol after he left Ottawa. He told the police officer he was tired and had decided to sleep in his car.

5Mr. Yadakh, the Ottawa store owner, testified that Mr. Burko had not consumed alcohol in his presence in Ottawa including their meal. Mr. Yadakh testified Mr. Burko had left him to return to Toronto between 5:00 – 6:00 p.m.

The Reasons of the Trial Judge

6The trial judge found that the police officer’s evidence was convincing and credible. The trial judge also noted that there were no inconsistencies of any importance in the police officer's testimony.

7The trial judge set out the defences raised: Mr. Burko's reactions at the scene were due to fatigue from the long trip and he had drunk no alcohol prior to driving that evening.

8The trial judge concluded:

...However, officer Broderick said the smell of alcohol was coming from Mr. Burko for the entire time he was with him.

Because of the inconsistencies and contradictions, I am unable to accept the evidence of the defendant. I do not believe him and am not left in a state of reasonable doubt by his evidence.

At some point, it is my finding that Mr Burko had consumed alcohol and was too drunk to drive to his office or home. He parked in an out of the way location in an attempt to sleep it off. His difficulty in waking up, the strong odour of alcohol, his bloodshot and watery eyes, his difficulty in finding his driver’s license, and his lack of physical coordination in getting out of his vehicle are all classic signs of impairment by alcohol.

THE GROUNDS OF APPEAL

9The Appellant submits that the trial judge erred in failing to find that the evidence raised a reasonable doubt as to whether Mr. Burko was impaired.

THE LAW

Appellate Review in Summary Convictions Appeals

10By 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(n):

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)).

11There 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)).

12The 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

13A 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

14The 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]

Misapprehension of the Evidence to be material

16A 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.

17This 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

18The 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.

19The 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.):

10There 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 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).

20Assessing 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.

ANALYSIS

21Let me first start with the fact the defence raised two discrete issues at trial.

22The first was that Mr. Burko had drunk no alcohol that day. The Defence tried to use the timeline of Mr. Burko's visit to Ottawa to suggest he had had no time to drink alcohol. Unfortunately, Mr. Vadazh's evidence was that Mr. Burko had left Ottawa much earlier, leaving some three to four hours unaccounted for during which Mr. Burko had the opportunity to consume alcohol. Nevertheless, the defence was that Mr. Burko had consumed no alcohol. Having the opportunity to consume alcohol does not mean, by itself, that alcohol was consumed by Mr. Burko.

23The second is that what was observed by the police officer was fatigue, not impairment.

24The trial judge expressly recognized that W.D. applied because Mr. Burko had testified to these two material facts - no alcohol was consumed that night and his actions were due to fatigue and that his credibility on these two material facts, was the central issues for the trial judge to decide.

25On the issue of alcohol consumption, the trial judge pointed to the police officer's evidence that throughout his interaction with Mr. Burko, his breath and person smelled of alcohol. The Defence at trial challenged this evidence because it was not noted by the police officer in his notes immediately or noted in the Intoxolyzer Report to the technician. Essentially, the Defence was suggesting the police officer was falsifying his notes which he made about the time of the breathalyser testing - to bolster his case after he had arrested Mr. Burko. After hearing the evidence and hearing the extensive submissions on this point, the trial judge accepted that the police officer had smelled alcohol on Mr. Burko's breath and person as fact. Clearly, there was an evidentiary basis for the trial judge's finding of fact. The trial judge's finding of fact is entitled to deference. This finding of fact necessarily was a rejection of Mr. Burko's evidence that he had consumed no alcohol that evening.

26The second defence argument was squarely before the trial judge. Was Mr. Burko's conduct due to impairment by alcohol or fatigue? The trial judge found that Mr. Burko had consumed alcohol that evening, drove, became tired and pulled over. The trial judge, looking at all the indicia of impairment, along with his finding of fact of the consumption of alcohol, concluded that Mr. Burko was impaired while in the care and control of a motor vehicle. This finding too was supportable by the evidence. This finding of fact is also entitled to deference. This finding was a rejection of Mr. Burko's evidence that his actions at the scene were due to fatigue.

27It is clear that the trial judge rejected Mr. Burko's evidence and the two issues he put before as his defence. It was not necessary for the trial judge to expressly say that he rejected Mr. Burko's evidence that he had had no alcohol and his actions at the scene were due to fatigue. This is clear from the trial judge's express findings of fact to the contrary.

28The trial judge went on to say that he was not left in a reasonable doubt on the two central facts. However, the trial judge did not go any further to explain why not. Is this an appealable error?

29The answer is that it depends on whether the trial judge's reasons, in the circumstance of the case and issues before him, are sufficient to satisfy the appellate court that the conviction was based on the application of the correct legal principles to the findings of fact.

30The Court of Appeal in R. v. J.J.R.D. 2006 40088 (ON CA), 215 CCC (3d) 252 described how the absence of adequate reasons are to be dealt with on appeal:

31After a review of the cases, Binnie J. returned to what he saw as the crucial question on appellate review of the adequacy of trial reasons at para. 46:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [Emphasis added.]

32The circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, if any, of the inadequacy of reasons or the outcome of the appeal. Reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.

33In my view, in this appeal, the words of Justice Binnie quoted at para 31 of J.J. R.D. above are apt:

Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene.

34Given the evidence and the express findings of fact, I see no appealable error.

35In my view, the Appellant seeks to avoid the deference owed to the trial judge’s findings of fact by arguing that evidence, not vital to the credibility issues identified above, were consistent with Mr. Burko's evidence and therefore supported the credibility of Mr. Burko on these credibility issues and should have raised a reasonable doubt. This is nothing more than an indirect attack on the judge's findings of fact in this case.

36Let me deal with the specific issues raised by the Appellant:

Mr. Yadakh’s Evidence (see paragraphs 10-11 of the Appellant’s factum).

37Mr. Yadakh’s evidence appears to have been called to help establish a timeline showing the lack of opportunity for Mr. Burko to have consumed alcohol. Unfortunately, Mr. Yadakh’s evidence did not achieve this purpose. It was inconsistent with Mr. Burko’s evidence as to when the two of them went their separate ways. Mr. Yadakh testified that they separated around 5:00 – 6:00 p.m. that day which was significantly earlier than testified to by Mr. Burko leaving a number of hours (after considering the time to drive from Ottawa to Toronto) unaccounted for.

38The Appellant states that there was considerable uncontested evidence of Mr. Yadakh, such as Mr. Burko attending in Ottawa, completing a shoe sale, having dinner together and then leaving to return, which the trial judge should have considered and used to support the credibility of Mr. Burko on the central credibility issues of consumption of alcohol and the cause of Mr. Burko's actions before the police officer.

39The evidence of Mr. Yadakh as to what happened in Ottawa was not in dispute. The evidence of Mr. Burko, except for the time he left Ottawa, was not in dispute. The credibility contest at play in this case was that Mr. Burko’s testified that he had consumed no alcohol before 3:20 am and was only tired at 3:20 am when approached by the police officer. The uncontested evidence of Mr. Yadakh as to where Mr. Burko was and did earlier in the day, adds nothing to the assessment of Mr. Burko’s credibility on the two material credibility issues which the trial judge had to decide.

40The fact that two witnesses agree on uncontested evidence on non-material facts, does not necessarily mean that one of the two witnesses should be believed on material facts in question. It is for the trier of fact to determine whether to accept or reject a witness' evidence on the material facts in question.

41I reject the Appellant's submission that this uncontested evidence of Mr. Yadazh should have added to the credibility of Mr. Burko so as to raise a reasonable doubt on the second prong of W.D.

Constable Broderick’s Evidence (see paragraph 12 of the Appellant’s factum)

42The Appellant submits that the Cst. Broderick’s evidence had a number of “inconsistencies” (contrary to the trial judge’s express finding that Cst. Broderick’s evidence had no inconsistencies of anything important) “could also have led to reasonable doubt”.

43In my view, this is nothing more than the Appellant challenging the trial judge’s finding of fact, to which this court owes a high and considerable degree of deference. The Appellant would have this court re-weigh the evidence of Cst. Broderick to come to a different conclusion than did the trial judge.

44Besides, the issues raised by the Appellant with respect to Cst. Broderick’s evidence were found not to be material. The Defence challenged the credibility of Cst. Broderick on the basis that the note referencing urine was not in the Intoxolyzer Report narrative made approximately three hours later in the breathalyser room. The reference to urine was in Cst. Broderick's notes. The trial judge, after hearing the extensive cross-examination and submissions on this issue, found the omission in the Intoxolyzer Report not to be important. There is no basis for me to conclude otherwise or that this was a material misapprehension of the facts.

45The Defence raised the same issue with respect to the notation of the smell of alcohol being made approximately three hours later in the breathalyser room. ************************ Again, after hearing extensive cross-examination and submissions on this issue, found the delay not to be important. There is no basis for me to conclude otherwise.

Mr. Burko’s prior consistent statements (see paragraph 13 of the Appellant’s factum)

46The fact that a witness, even an accused, has made prior consistent statements (when they are admissible) is not indicative of the veracity or reliability of those statements. Because a person may have repeated a statement multiple times in giving a statement does not, by repetition, make the statement more truthful or reliable.

47The Appellant submits that Mr. Burko had said he was tired due to fatigue to the police officer. He gave the same evidence was before the trial judge. This evidence was referred to by defence counsel in his closing submissions at trial. The trial judge rejected Mr. Burko's evidence that his actions were due to him being fatigued. The trial judge found it was due to alcohol consumption. He did so based on a consideration of all the evidence, which included that Mr. Burko and his breath smelled of alcohol.

48I must add that Mr. Burko's evidence that his actions were due to fatigue only, does not explain the alcohol on Mr. Burko’s breath, which the trial judge expressly found as a fact. The trial judge specifically recognized this stark contradiction with his finding of facts.

Cst. Broderick’s evidence (paragraph 15 of the Appellant's factum)

49The Appellant challenges the trial judge’s finding of fact that Cst. Broderick’s evidence contained no inconsistencies of any importance. This is a repeat of an earlier argument raised by the Appellant.

50Cst. Broderick testified as to the smell of alcohol on Mr. Burko’s breath and that the puddle near the car was urine.

51For the same reasons as above, I am satisfied that the trial judge had clear and credible evidence on what Cst. Broderick saw at the scene and was in the best position to determine whether the failure to include these in the Intoxolyzer Report (but were included in his notes) was or was not important.

52I see no reason to interfere. There was no palpable and overriding error with respect to this finding of fact.

CONCLUSION

53The Appellant's submission do not establish an appealable error.

54For the reasons set out above, the appeal is dismissed.

Ricchetti, J.

Released: September 25, 2015

COURT FILE NO.: SCA 18/15

DATE: 20150925

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

VOLODYMYR BURKO

REASONS FOR JUDGMENT

On APPEAL FROM THE JUDGMENT OF THE HONOURABLE A. Cooper, DATED January 26, 2015

Ricchetti, J.

Released: September 25, 2015