COURT FILE NO.: 110/14

DATE: 20151110

SUPERIOR COURT OF JUSTICE - ONTARIO

SUMMARY CONVICTION APPEAL – TORONTO REGION

RE: HER MAJESTY THE QUEEN (Respondent) v. WINSTON BARNES (Appellant)

BEFORE: Justice N. J. Spies

COUNSEL: Zachary Kerbel, for the Appellant

Robert Wright, for the Respondent

DATE HEARD: September 17, 2015

E N D O R S E M E N T

Introduction

[1] The Appellant, Winston Barnes, was charged with having care and control of a motor vehicle: (1) while his ability to operate a motor vehicle was impaired by alcohol or a drug; and, (2) while having a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood (“Over 80”). Mr. Barnes was tried by Justice M. Zuker of the Ontario Court of Justice on August 18, 2014. The trial proceeded by way of a blended voir dire to hear Mr. Barnes’ Charter Application which alleged a breach of s. 8 of the Charter and in particular that the police did not have reasonable and probable grounds to make a breath demand pursuant to s. 253 of the Criminal Code (“the Charter Application”). This was the sole issue raised in submissions with respect to the charge of Over 80; counsel for the Appellant conceded the remainder of the essential elements with respect to that charge. Mr. Barnes denied that he exhibited signs of impairment or that he was impaired.

[2] Following the submissions of counsel, Justice Zuker gave oral reasons and convicted Mr. Barnes of both charges. He then stayed the impaired driving conviction. He sentenced Mr. Barnes to a $1,000.00 fine and a 12-month driving prohibition. This appeal is from conviction.

The Issues

[3] The Appellant raises one ground of appeal: the adequacy of the reasons of the learned trial judge. His counsel, Mr. Kerbel, takes the position that the trial judge’s reasons for judgment are insufficient because they fail to explain how he resolved the many material inconsistencies between P.C. Aguiar's and Mr. Barnes’ evidence, because they fail to explain why the trial judge came to the decision he did with respect to the Charter Application and why he convicted Mr. Barnes of both charges. It is submitted that the reasons of the trial judge fail to permit meaningful appellate review, that this has caused prejudice to Mr. Barnes’ right to an appeal in this case and that the proper remedy is a new trial.

[4] Mr. Wright for the Crown submitted that this was an overwhelming case for the Crown. The trial judge had only one issue to determine with respect to the count of Over 80: had the Crown proven on a balance of probabilities that there were reasonable and probable grounds for the arresting officer to make the breath demand. If so, there being no other issue, the results of the breath demand would necessarily result in a conviction for the Over 80 charge. It is Mr. Wright’s submission that the trial judge was so satisfied and that his reasons sufficiently explain why he arrived at that result. As for the impaired driving conviction Mr. Wright concedes that the trial judge did not give any reasons for that conviction but it is his position that this conviction is moot in light of the stay.

The Evidence and Submissions at Trial

[5] The trial took the morning of August 18, 2014 with submissions of counsel made after lunch followed by the trial judge’s oral reasons.

[6] This case concerned a traffic stop of Mr. Barnes’ vehicle by P.C. Aguiar of the Toronto Police Service on the evening of August 4, 2012. Following the traffic stop and a brief investigation, P.C. Aguiar arrested Mr. Barnes for impaired driving. Mr. Barnes subsequently provided breath samples at the police station into an Approved Instrument showing that he had a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. He was then also charged with driving “Over 80”.

[7] At trial the testimony of P.C. Aguiar and Mr. Barnes presented the trial judge with two different narratives of the manner of Mr. Barnes’ driving just before the traffic stop. P.C. Aguiar testified that while he and his escort, both on motorcycles, were stopped at the light on Adelaide Street West, heading east, he noticed Mr. Barnes’ travelling too fast to come to a complete stop prior to entering the intersection causing a confrontation with two pedestrians crossing the street. As a result P.C. Aguiar decided to stop Mr. Barnes to investigate him for various driving offences. P.C. Aguiar’s reasons for stopping Mr. Barnes all related to the manner of his driving. However he did not testify that he suspected that Mr. Barnes was impaired because of the manner of his driving. There is no dispute that at this stage P.C. Aguiar did not suspect impaired driving. The trial judge characterized this as a submission by the Crown that Mr. Barnes had almost run over the two pedestrians. It is not clear whether or not the trial judge relied on this evidence or not.

[8] In any event Mr. Barnes denied this evidence and testified that as he was coming to the stop the light turned green and that the pedestrians were still in the cross-walk causing him to brake. However, his counsel did not take the position that the traffic stop was unlawful.

[9] Once Mr. Barnes’ vehicle was stopped, the evidence of P.C. Aguiar was that when Mr. Barnes first stepped out of his vehicle he noticed that he was unsteady on his feet, as he nearly lost his balance and had to hold himself by leaning against a lamppost, and his eyes were glossy and red. He asked Mr. Barnes to return to his vehicle and demanded his driver’s licence, ownership and insurance papers. According to P.C. Aguiar, he noted a strong smell of alcohol coming from Mr. Barnes’ mouth and Mr. Barnes admitted that he had had some alcohol earlier in the day. According to P.C. Aguiar, Mr. Barnes could not provide his identification.

[10] At this point P.C. Aguiar testified that he asked Mr. Barnes to step out of his car as he now had a suspicion that Mr. Barnes had alcohol in his blood while operating a motor vehicle. P.C. Aguiar testified that at 8:44 p.m. he asked his escort to request an Approved Screening Device (“ASD”) and he demanded that Mr. Barnes produce a sample of breath into it.

[11] There was no dispute that during P.C. Aguiar’s exchange with Mr. Barnes, one of the persons in Mr. Barnes’ vehicle; apparently his niece, began videotaping it and requested his badge number, which he provided. In cross-examination P.C. Aguiar denied the suggestion that this upset him or that Mr. Barnes asked his niece to stop because the officer was upset. He testified that he gave this person his name and badge number. He also denied the suggestion that losing patience with Mr. Barnes’ niece and the fact it had started raining and he was on a motorcycle were the reasons he decided to place Mr. Barnes under arrest for impaired driving rather than waiting for the ASD.

[12] According to P.C. Aguiar, as they were waiting for the ASD he noted that Mr. Barnes had to brace himself against his car. When he asked Mr. Barnes to move over to a nearby building P.C. Aguiar testified that Mr. Barnes was now bracing himself and holding himself up against a building and he noticed that Mr. Barnes was now slurring his words and his movements were “slow, deliberate and uncoordinated”.

[13] At 8:48 p.m., P.C. Aguiar decided that Mr. Barnes was “obviously impaired” and he arrested him for impaired driving. While the officer searched the car he took Mr. Barnes over to sit on a flower planter because according to the officer Mr. Barnes was obviously unsteady. According to P.C. Aguiar it was while they were waiting for a police car to transport Mr. Barnes that it started to rain heavily and they moved back towards the building and waited under an overhang so they would not get wet.

[14] Mr. Barnes was taken to a RIDE facility where P.C. Kell, a Qualified Breath Alcohol Technician, took a breath sample at 9:24 p.m. The result of the test showed that Mr. Barnes had 121 milligrams of alcohol per 100 millilitres of blood. At 9:54 p.m. the second sample tested at 111 milligrams of alcohol per 100 millilitres of blood.

[15] P.C. Aguiar did not give P.C. Kell any information about what he alleged was the reason for the arrest. He testified that as he assisted Mr. Barnes into the RIDE truck, he noticed that Mr. Barnes had urinated in his shorts. P.C. Kell testified that the condition of Mr. Barnes’ clothing was neat and he did not notice that his pants were wet. According to Mr. Barnes, he wet his pants during the breathalyzer test due to prostate problems.

[16] P.C. Kell testified that he noticed a strong odour of an alcoholic beverage on Mr. Barnes’ breath and that his eyes were glossy and bloodshot. He testified that Mr. Barnes had a slight accent and his speech was “fair”. I note he did not say that Mr. Barnes was slurring his words. According to P.C. Kell, Mr. Barnes was polite and cooperative. P.C. Kell believed that Mr. Barnes seemed intoxicated but was unable to form an opinion as to his ability to operate a motor vehicle. He gave no evidence about Mr. Barnes’ balance or motor skills but explained that it is a very small space and it is difficult for him to make observations as to a person’s gait, stride or balance.

[17] Mr. Barnes was 63 at the time; a retired machinist. He admitted telling P.C. Aguiar that he had had a couple of shots of vodka and orange between 3:30 p.m. and 5:00 p.m. He also admitted not being able to find his documents. However, he denied the rest of the observations P.C. Aguiar made. It was Mr. Barnes’ evidence that after P.C. Aguiar asked him to step out of his vehicle when it started to rain. He testified that he did not need to support himself on a lamppost or his vehicle and that although he may have rested his foot against the wall of the building he was not off balance or anything of that nature. He testified that he was “very much in control” of himself. According to Mr. Barnes, after it began to rain a little bit more, all of a sudden P.C. Aguiar told him he was under arrest for impaired driving.

[18] The Crown’s position in closing submissions was that it had proven its case beyond a reasonable doubt, that there had been no breach of Mr. Barnes’ s. 8 rights, and that, even if there had been, the breath samples were admissible under s. 24(2) of the Charter.

[19] The position of the Defence was that the Crown had not proven its case beyond a reasonable doubt and that the breath samples provided by Mr. Barnes should be excluded as evidence under ss. 8 and 24(2) of the Charter because, on Mr. Barnes’ evidence, P.C. Aguiar did not have reasonable and probable grounds to make the breath demand. It was argued that although P.C. Aguiar may have had a suspicion that Mr. Barnes had alcohol in his blood while operating a motor vehicle, justifying his request that Mr. Barnes give a breath sample into an ASD, he did not have reasonable and probable grounds four minutes later to make a breath demand and arrest Mr. Barnes for impaired driving. The theory of the Defence was that P.C. Aguiar was annoyed that someone in Mr. Barnes’ vehicle was videotaping him and it was now raining and he was on a motorcycle and he did not want to wait for an ASD to arrive. As already stated, P.C. Aguiar denied these suggestions.

[20] Defence counsel submitted to the trial judge, during his closing submissions, as follows:

I ask you to examine this gentleman’s [Mr. Barnes’] evidence. Was there anything in in his evidence that was inconsistent? Was there anything in his evidence that he was trying to deceive the court? He had a very good recollection of those events. He is a man of senior years. He has worked hard all of his life, and said in a very clear and concise fashion what happened.

If Your Honour has a doubt about that and you resolve it in favour of the accused that there were at the time no reasonable and probable grounds to request him to go back to the station after being arrested, no reasonable grounds to arrest him and take away his liberty, then it follows that there would have been no lawful arrest and no right to take breath samples, and, therefore, the evidence obtained by the Intoxilizer should be excluded.

But it all hinges on whether you think this man under oath has misled you, and, I respectfully submit, his evidence had far less issues about his credibility. He was not inconsistent, he was forthright, and he answered questions directly.

The Trial Judge's Reasons for Convicting

[21] The trial judge provided oral reasons for judgment immediately following submissions. After setting out the two charges that Mr. Barnes was accused of, the trial judge did an extensive review of all of P.C. Aguiar’s evidence from the time he saw Mr. Barnes’ vehicle and stopped him to his observations of Mr. Barnes and the chronology of his demand that Mr. Barnes give to a breath sample into an ASD and then his arrest of Mr. Barnes for impaired driving and the breath demand and his arrangements to transport Mr. Barnes to the RIDE facility and then turning Mr. Barnes over to P.C. Kell.

[22] After reviewing the evidence of P.C. Aguiar in detail, the trial judge stated: “This is evidence that Mr. Barnes contradicts or categorically denies.” It seems that the trial judge was referring to only the last portion of his summary of the evidence of P.C. Aguiar but it is possible that he was referring to more or even all of it. It is not clear.

[23] The trial judge then reviewed the evidence about Mr. Barnes urinating in his shorts. Implicitly he accepted the evidence of P.C. Aguiar that that occurred before P.C. Kell but he stated that he was not that sure “what causation that adds” and it appears that he appreciated this evidence was not relevant to the issues before him.

[24] The trial judge then referred to the fact that it was suggested in cross-examination that P.C. Aguiar was upset that Mr. Barnes’ niece was videotaping him and that Mr. Barnes told her to stop. He did not set out what the officer’s evidence was in response to this suggestion, nor why this suggestion was important to the Defence theory of the case.

[25] The trial judge then went on to set out the results of the breath samples taken by P.C. Kell as well as his evidence of his observations of Mr. Barnes.

[26] In turning to the evidence of Mr. Barnes, the trial judge stated that he gave evidence “somewhat different than Officer Aguiar, in particular in terms of approaching Spadina”. The trial judge then set out a one-paragraph summary of Mr. Barnes’ evidence about what happened in terms of his approaching Spadina in his vehicle but notably the trial judge did not summarize any of Mr. Barnes’ evidence about what unfolded after he drove through the intersection and was stopped by P.C. Aguiar and in particular his denial of the officer’s evidence alleging signs of impairment.

[27] The trial judge then set out a one paragraph reference to the fact it was the submission on behalf of Mr. Barnes that the onus is on the Crown to prove its case beyond a reasonable doubt, “presumably for the purpose of these proceedings Charter issues will apply” referencing the need to determine if there had been a Charter violation and to what extent if any R. v. Grant would come into play. This paragraph is not clear but presumably the learned trial judge was noting that the Charter Application was the real issue (at least for the Over 80 charge) as it would determine whether or not the evidence of the breath samples was admissible.

[28] The trial judge then continued and reviewed a considerable amount of law in over four pages related to the concept of reasonable and probable grounds as it relate to the validity of a breath demand pursuant to s. 254(3) of the Criminal Code and to the concept of “reasonable suspicion” as it relate to the validity of an ASD demand under s. 254(2), although there was no issue in this case as to the validity of the ASD demand, as none was ever made.

[29] In the course of this review, Mr. Wright submits that the trial judge set out the question he had to answer as: "Is [w]hat took place objectively sufficient to again objectively support the officer's belief as to the impairment and, therefore, the validity of the demand?" This, however, is imbedded in the review of the law and so I would not characterize this as the question the trial judge determined that he had to answer.

[30] After this review of the law the reasons then continued as follows; I have numbered the paragraphs to permit reference to them in my Analysis:

(1) In this case it is submitted on behalf of Mr. Barnes that the officer did not have reasonable and probable grounds. Arguably as indicated, the facts cannot be considered in isolation.

(2) The officer gave evidence of an odour on Mr. Barnes’ breath, his glossy eyes, the suggestion that Mr. Barnes could not stand up properly whether exiting his vehicle, the second time he had to be helped and, therefore, arguably was in a confused state, and this, therefore, led to the officer’s conclusion or belief as to Mr. Barnes’ impairment and the validity of the demand according to the officer.

(3) It is submitted on behalf of the Crown that all of the indicia of objectivity with respect to reasonable and probable grounds on behalf of the officer was there. It was submitted that Mr. Barnes almost ran over two pedestrians. It was submitted that Mr. Barnes was going too fast towards a red light and that he almost hit two pedestrians going through the crosswalk. It was submitted that Mr. Barnes was unsteady on his feet, couldn’t find his wallet and, therefore, at 8:48 p.m. there was no need for any roadside testing.

(4) Again, Mr. Barnes in his evidence denied any inability to stand or walk, and certainly there is no requirement in law and no prerequisite in determining reliability that an individual be allowed to do any self-testing.

(5) I find, on all the evidence, the Crown has made its case out, that there was reasonable and probable grounds. The officer had a right to make the demand and arrest the accused, and there will be a conviction. [emphasis added]

[31] In paragraph (1) set out above, there is a confusing sentence: Arguably as indicated, the facts cannot be considered in isolation. I appreciate that these are oral reasons that have been transcribed and agree with Mr. Wright that this was simply a poorly worded way of the trial judge saying that he had to consider all of the evidence.

[32] Neither counsel were able to make any suggestion as to what the trial judge meant by the sentence I have italicized in the paragraph (4). I accept Mr. Wright’s submission that one errant sentence in a judgment is not necessarily an issue. In this case I have simply ignored that sentence as I am not able to guess at it’s meaning either.

The Law-The Sufficiency of Reasons

[33] Much has been said by the Supreme Court of Canada on the sufficiency of reasons and the law on this topic is settled. In R. v. R.E.M., 2008 SCC 51, 2008 S.C.C. 51, the Court confirmed at para. 15:

This Court in Sheppard 2002 SCC 26, [2002] S.C.J. No. 30] and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

[34] By reading the reasons in context, the Supreme Court of Canada in R.E.M. directs that I must read them:

[16] … as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered [references omitted].

[17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. [emphasis in original]

[35] The Court in R.E.M. at para. 34 approved of an earlier decision of the court in R. v. Walker, [2008] 2 S.C.R., where Binnie J., writing for the Court, held (at para. 20):

Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.

[36] At paras. 48-51 the Court in R.E.M. made specific comments about the sufficiency of reasons on findings of credibility, which was the issue in that case. The court recognized that assessing credibility is not a science, that it may involve factors that are difficult to verbalize and the trial judge may want to spare the accused the indignity of not only rejecting his evidence but adding negative comments about his demeanor. In cases that turn on credibility the trial judge is not required to enter into a detailed account of the conflicting evidence if the factors supporting or detracting from credibility are clear from the record and it is clear that the judge has seized the substance of the issue.

[37] Where there are significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment, which relate to a key issue on appeal, and the record does not otherwise explain the trial judge’s decision in a satisfactory manner that prevent, meaningful appellate review, the reasons are deficient: R. v. Sheppard, at para. 28.

[38] The settled law was reviewed again in a recent decision from the Supreme Court of Canada dealing with the sufficiency of reasons in a criminal case; R. v. Vuradin, 2013 SCC 38. In that case Karakatsanis J. summarized the law with respect to this issue and concluded that "[t]he core question in determining whether the trial judge's reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he did on the counts in question?” [at para. 15, emphasis added]

Analysis

[39] It is Mr. Wright’s primary position that what I have identified as paragraph (2) of the reasons, as set out above, is where the trial judge made his findings of fact and that the reasons, therefore, explain how he came to his conclusion. Mr. Wright argues that in the surrounding paragraphs, when describing the other, contested parts of evidence, the trial judge begins his passages with “it is submitted on behalf of” and that it is only this paragraph that does not begin with those words; because this is a passage representing the trial judge rejecting the argument advanced by the Defence by making findings of fact about the evidence he did accept. He argues that this is the logical reading of this passage when the whole of the judgment is considered and that this is the logical meaning of the trial judge’s use of “it is submitted” in the surrounding paragraphs; qualifying words that are completely absent from this passage.

[40] I do not accept this submission for a number of reasons. First of all, clearly the fact the trial judge does not use the phrase “it is submitted” in paragraph (2) does not mean that he has accepted the summary of the evidence of P.C. Aguiar as a fact. If that were true then the same thing could be said about the evidence of Mr. Barnes set out in paragraph (4) where again the phrase “it is submitted” is not used. Paragraph (4) sets out the position of Mr. Barnes and the fact that he denied any inability to stand or walk. I note as well that this is the first reference to this aspect of Mr. Barnes’ evidence.

[41] Furthermore, the trial judge does not state in paragraph (2) that these are his findings of fact whereas he does use that precise terminology in the last paragraph of his reasons. In addition, earlier in his reasons when summarizing the evidence of the officers, the trial judge refers repeatedly to “the officer’s evidence” or sometimes “according to the officer”. Significantly the trial judge ends paragraph (2) with the words: “according to the officer”, clearly referring to the fact that this was the officer’s evidence. There is absolutely no hint that this paragraph contains any assessments of credibility or findings of fact. Furthermore, even if these were findings of fact, there is nothing in the reasons to explain why the trial judge preferred the evidence of P.C. Aguiar, nor does the record disclose anything making his reasons apparent. Mr. Barnes’ evidence was internally consistent at trial and nothing on the face of his evidence is any more or less credible than P.C. Aguiar’s evidence.

[42] My conclusion in this regard is also reinforced by the fact that paragraph (3) of the reasons, as set out above, sets out the submissions of the Crown based on this evidence and other evidence of the officer. Although I agree with Mr. Wright that this paragraph suggests along with paragraph (4) that the trial judge was alive to the contradictory evidence between P.C. Aguiar and Mr. Barnes, this information would usually be set out before the findings of fact. In my view the order of the paragraphs supports my characterization of paragraph (2). I, therefore, agree with the position of Mr. Kerbel that the last paragraph of the reasons set out above, what I have numbered paragraph (5), is the only place where the learned trial judge made any findings of fact.

[43] Mr. Wright submitted that as Mr. Barnes was a 65-year old retiree who had no prior incidents with the law at the time of trial, the trial judge may have wanted to spare him the further indignity of making findings against him in addition to finding him guilty of this offence, relying on R.E.M. at para. 49. I do not understand that R.E.M. stands for the proposition that a trial judge can decide not to give any reasons for why he or she rejects the evidence of an accused just to avoid hurting the accused’s feelings. In any event, if that were the case here, I would not have expected the trial judge to refer to the fact that Mr. Barnes was incontinent since he recognized that that was not relevant. That in my view must have been the most embarrassing thing that happened to Mr. Barnes at the time of his arrest and the most embarrassing evidence he had to give at trial.

[44] Mr. Wright does acknowledge that the trial judge did not expressly resolve the contested facts between P.C. Aguiar and Mr. Barnes but he submits that this evidence did not have to be resolved in order for the trial judge to determine that the Crown had met the burden on the balance of probabilities, relying on R. v. Pierce, [2012] O.J. No. 5123 (S.C.J.) at paras. 37-42. Although I agree that to decide the Charter Application the trial judge could have found both witnesses equally credible, and thus decided that Mr. Barnes did not meet his onus, that would be difficult on the facts of this case as Mr. Barnes’ evidence directly contradicted the evidence of P.C. Aguiar on the issue of whether or not the observations that P.C. Aguiar alleged that he made were in fact accurate and true. In any event, there is no basis to find from the reasons that that is what the trial judge found in this case.

[45] Mr. Wright also submitted that the trial judge may have been able to reconcile the evidence of P.C. Aguiar and Mr. Barnes. I do not accept that submission. Their evidence as to the events leading up to the stop and whether or not there were signs of impairment was quite different. In any event we should not be left guessing as to how the trial judge came to his conclusions.

[46] It is the position of Mr. Kerbel that in his reasons for judgment, the trial judge failed to articulate how he resolved any of the inconsistencies between P.C. Aguiar’s and Mr. Barnes’ evidence. I accept that submission. Given the conflicting evidence on the issue of whether or not Mr. Barnes exhibited signs of impairment, the credibility of P.C. Aguiar and Mr. Barnes was in issue. This argument should have clearly suggested to the trial judge that the Defence took the position that at least some of P.C. Aguiar’s evidence was false. The trial judge had to decide what to believe from their conflicting evidence, consider the Defence theory for the reason for the arrest and decide if the Crown had proven on a balance of probabilities that P.C. Aguiar’s opinion in fact legitimately changed from a suspicion to reasonable and probable grounds four minutes later, justifying a breath demand, given the officer did not have a failed ASD test.

[47] If the trial judge was not satisfied with the evidence of P.C. Aguiar, he would have had to find a breach of s. 8 of the Charter and likely would have excluded the breath demand pursuant to s. 24(2) of the Charter as such a finding would have meant that he found the officer was not being truthful about his observations and beliefs. If, however, the trial judge believed the officer then the breath demand being lawful, would necessarily have resulted in a conviction on the Over 80 charge. The trial judge would then have had to go on and make further findings of fact and determine if the Crown had proven the impaired driving charge beyond a reasonable doubt.

[48] In my view the Defence argument had to be addressed in some fashion and even if the trial judge did not have to deal with every inconsistency, such as for example the different evidence of how Mr. Barnes was driving, the trial judge had an obligation to give some reasons for why he rejected the evidence of Mr. Barnes and accepted the evidence of P.C. Aguiar, or was unable to decide who was telling the truth. With respect to the learned trial judge, his reasons do not explain why he made his conclusory findings of fact in the last paragraph of his reasons.

[49] Mr. Wright submitted that in determining the reasonableness of P.C. Aguiar’s belief, the trial judge only had to consider whether the evidence was rationally capable of supporting the inference of impairment, which was drawn by the officer. The Crown did not have to prove the inferences drawn by the officer were true or even accurate-that is the standard of proof reserved for a trial on the merits. The question is whether it was more probable than not that the officer subjectively believed the necessary grounds and that they were objectively reasonable. Mr. Wright argued that in assessing this standard, a trial judge may not have to resolve all contradictory evidence, provided that there is evidence preferred by the Court that meets the necessary burden.

[50] I accept these submissions but they do not change the fact that the trial judge had to give at least some reasons for his findings. Unfortunately the trial judge did not give any reasons for why he preferred the evidence of P.C. Aguiar over the evidence of Mr. Barnes or in the alternative, if the application turned on the fact the Defence had to meet the burden of proof, why he had decided that he did not know whom to believe.

[51] The “findings” of the trial judge in the last paragraph of his decision are statements of a conclusion that P.C. Aguiar had reasonable and probable grounds and the officer had a right to make the demand and arrest Mr. Barnes. The problem is that the trial judge does not explain why he came to that conclusion anywhere in his decision. The trial judge made no credibility assessments and no findings of fact in his judgment; he made no mention of how he resolved the often conflicting evidence on various material issues; e.g. whether Mr. Barnes was unsteady on his feet as P.C. Aguiar said he was upon exiting the vehicle, whether Mr. Barnes had to lean on a lamppost and the wall of a building for support and whether Mr. Barnes was in fact slurring his words which I note was not observed by P.C. Kell.

[52] For these reasons I accept Mr. Kerbel’s submission that the words of Campbell J. in R. v. Tong, 2014 ONSC 1861 at paras. 31-32 provide a particularly apt assessment of reasons for decision in this case. I will not repeat those words here. I am mindful of the fact that particularly in the criminal provincial courts, the trial judges face long lists and that a trial judge is not expected to give perfect reasons or deal with every aspect of every case in his reasons. However, the reasons of the learned trial judge in this case are not unlike the facts in Sheppard, where the court held: “we are no wiser as to how his reasoning proceeded from there.” (at para. 56)

[53] For these reasons I find that the trial judge’s reasons for judgment are manifestly insufficient in that he failed to articulate how he resolved the contradictory evidence and why he came to the conclusion he did with respect to the Charter Application and his finding of guilt with respect to the charge of impaired driving. The reasons of the trial judge do not explain to Mr. Barnes, the public, or to this Court, why Mr. Barnes’ Charter Application was dismissed, and why he was convicted; the reasons fail to permit meaningful appellate review.

[54] Finally Mr. Wright submitted that where a trial decision is deficient in explaining the result to the parties but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient-there is no need for a new trial, and the error of law can be cured pursuant to s. 686(1)(b)(iii), citing Sheppard at para. 55. That is not a remedy in this case. I am not able to explain how the trial judge came to his conclusions and of course I am not in a position to assess the credibility of the witnesses and make findings of fact from the transcript of the evidence. The proper and only remedy is a new trial.

[55] Had I not come to this conclusion, I would still have been concerned about the conviction on the impaired driving charge even though that conviction was stayed. There are absolutely no reasons given by the trial judge for that conviction and clearly a resolution of the Charter Application would not necessarily lead to a conviction of impaired driving. I do not agree with Mr. Wright that it is moot because of the stay of that conviction. A stay of a conviction is obviously not the same as an acquittal. I would have set that conviction aside in any event.

Disposition

[56] For these reasons, the appeal is allowed; Mr. Barnes’ convictions are set aside. I order that there be a new trial before a different justice. I further order that Mr. Barnes appear on December 9, 2015 at 9:00 a.m. in 111 Court at Old City Hall Courts, 60 Queen Street W., for the purpose of setting a date for trial.

SPIES J.

DATE: November 10, 2015