SUPERIOR COURT OF JUSTICE – ONTARIO

Summary Conviction Appeals – Toronto Region

Court File No.: 003/15
Date: 20151123

RE: HER MAJESTY THE QUEEN v. JOSE ORELLANA

BEFORE: NORDHEIMER J.

COUNSEL:
T. J. Ofiara, for the Crown/respondent
J. R. Barrs, for the applicant/appellant

HEARD: November 20, 2015

E N D O R S E M E N T

[1] Mr. Orellana appeals from the decision of Ormston J. of the Ontario Court of Justice dated September 19, 2014 in which the trial judge found the appellant guilty of the offence of having care and control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol.

[2] It was agreed at trial that the appellant was found in the driver’s seat of a motor vehicle at approximately 3:45 a.m. and that his ability to operate a motor vehicle was impaired by alcohol. The appellant’s version of the events was that he was on his way home when the truck he was driving experienced mechanical difficulties. He drove off onto a side road and eventually parked the truck in a driveway that led to a warehouse. The appellant said that the transmission of the truck was “blown” such that the truck could not move forward but could be moved in reverse. The appellant made some effort to get his wife to come and pick him up but she refused, apparently arising from some earlier disagreement the two of them had had. The appellant says that he chose to wait in the vehicle until morning when his son or a friend could come with a tow truck, that the appellant owned, in order to take the vehicle home. Because it was cold out, the appellant says that he chose to drink a bottle of liquor to keep warm. Having consumed the entire bottle of liquor, the appellant feel asleep in the vehicle.

[3] The appellant was discovered in his vehicle by a security guard. The security guard gave evidence that the engine of the vehicle was running at the time. The security guard called the police. The security guard said that one of the first officers on scene turned the engine off. Three of the four officers who attended at the scene said that they did not find the engine running when they arrived. One of those officers found the car keys in the side pocket of the driver’s door. The fourth officer, who also appears to have been the first officer who arrived on scene, did not give evidence.

[4] Three grounds of appeal are advanced: (i) that the trial judge erred in conducting the trial in the English language without the aid of an interpreter for the appellant when it was apparent that the appellant had difficulty in expressing himself in English; (ii) the trial judge erred in questioning the appellant at length thus creating a reasonable apprehension of bias; and (iii) the trial judge erred in finding that there was a reasonable risk that the appellant could have put the motor vehicle in motion. I will deal with each of those grounds in turn.

[5] In terms of the first ground of appeal, the appellant does appear to have had difficulty, at some points in the course of the trial, responding to questions. However, for the majority of the time, both in examination in chief and in cross-examination, he was able to answer questions in an understandable fashion. Neither the appellant nor his counsel at any point advised the court that the appellant was in need of an interpreter in order to give his evidence. The trial judge was alive to the fact that Spanish, not English, was the appellant’s first language as, at one point, he made reference to that fact. Nevertheless, it is clear that the trial judge did not feel that the appellant required an interpreter in order to properly participate in, and respond to, the proceedings.

[6] The Supreme Court of Canada has identified two situations where the court should ensure than an interpreter is made available to an accused person. In R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951, Lamer C.J.C. said, in part, at para. 48(QL):

As a general rule, courts should appoint an interpreter when either of the following occurs:

(1) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him - or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or

(2) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified.

As I have already noted, neither the accused nor his counsel asked for an interpreter.

[7] This was not a complicated case, at least not factually complicated. The appellant was quite able to give his version of the events. He was able to understand the questions that he was asked and he provided answer to those questions, including the questions asked by the trial judge. I see nothing, in the overall record of the proceedings, that would establish that the appellant was unduly hampered in his ability to participate in the proceedings. I repeat that no issue regarding the appellant’s ability, to understand and participate in the proceedings, was raised at the time. The fact that this issue is first being raised on appeal weighs heavily against any finding that the trial was rendered unfair because an interpreter was not present.

[8] In terms of the second ground of appeal, after the examination in chief and the cross-examination of the appellant were completed, the trial judge asked a number of questions of the appellant. He then invited counsel for the appellant (not counsel on this appeal) to ask any further questions he might have, including on a specific issue that the trial judge had raised with the appellant. The appellant’s counsel asked the appellant further questions.

[9] A trial judge is entitled to ask questions of any witness. As Martin J.A. said in R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207 (Ont. C.A.) at p. 230:

A criminal trial is, in the main, an adversarial process, not an investigation by the judge of the charge against the accused, and, accordingly, the examination and cross-examination of witnesses are primarily the responsibility of counsel. The judge, however, is not required to remain silent. He may question witnesses to clear up ambiguities, explore some matter which the answers of a witness have left vague or, indeed, he may put questions which should have been put to bring out some relevant matter, but which have been omitted.

[10] That said, a trial judge’s right to question a witness carries with it inherent concerns because, no matter how carefully it is undertaken, it has the potential for giving the appearance that the trial judge has chosen to align him/herself with one side or the other. Consequently, it is a right that should be exercised sparingly and cautiously. Engaging in it invites an accusation of bias of precisely the type that is raised here.

[11] The question then becomes whether the questioning by the trial judge was of a nature as to give rise to the appearance that the accused did not receive a fair trial. This test was enunciated in R. v. A.W. (1994), 1994 218 (ON CA), 94 C.C.C. (3d) 441 (Ont. C.A.) where Arbour J.A. said, at para. 24(QL):

In the end, we must determine whether the interventions of the trial judge, and particularly his examination of the appellant, were such as to create an appearance in the eyes of a reasonable and fair-minded observer, that the appellant did not have a fair trial. I cannot say that this is the case here. Neither counsel had any question arising out of the trial judge’s questioning of the appellant. Defence counsel did not object at any stage to the trial judge’s interventionist approach. In saying so I recognize the difficulty in articulating either a general objection, or a specific objection to the form or content of a particular question put by the judge to a witness. Difficult as it may be, it remains the duty of counsel for both parties to give the trial judge the benefit of their submissions if, for whatever reason, it appears to them that the trial is not being conducted fairly.

I note that trial counsel for the appellant did not raise any objection to the trial judge’s questions.

[12] I accept that some of the questions asked by the trial judge delved into areas that did not appear relevant to the central issue. I also accept that some of the questions were asked in a manner that was, perhaps, somewhat more pressing than was desirable. However, viewing the trial judge’s questions as a whole, I do not believe that a reasonable and fair-minded observer would conclude that the appellant did not receive a fair trial. The trial judge clearly had some concerns with the appellant’s version of the events, but he fairly put questions to the appellant that provided the appellant with the opportunity to dispel those concerns. The fact that the trial judge had concerns, and chose to reveal them, does not amount to bias on his part. There is a fundamental difference between being doubtful and being biased.

[13] The third ground of appeal deals with the trial judge’s conclusion that there was a risk that the appellant could have put the vehicle in motion. The Supreme Court of Canada set the test for making such a finding in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 where Fish J. said, at para. 42:

In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[14] In that same case, the court also pointed out that “anyone found inebriated and behind the wheel with a present ability to drive will -- and should -- almost invariably be convicted” (para. 45) and “that ‘realistic risk’ is a low threshold” (para. 48).

[15] In this case, while the appellant contended that the vehicle could not be driven forward, he acknowledged that it could be driven in reverse. The trial judge found that that fact was sufficient to establish that there a realistic risk that the appellant might have decided to drive the vehicle in reverse for a purpose (as the appellant had already admitted to having done) and thus put others at risk. The vehicle was parked in an area to which transport trucks required access to either enter or leave the warehouse. There was therefore the possibility that the appellant might have to move the vehicle and thereby put others at risk. The appellant also had no “alternative plan” of the nature discussed in Boudreault that removed that risk. The conclusion reached by the trial judge was one that was open to him on the evidence. It ought not to be lightly interfered with on appeal.

[16] The appeal is dismissed. The stay of driving prohibition is lifted.

NORDHEIMER J.

DATE: November 23, 2015