ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA(P) 401/14 Brampton
DATE: 2015-12-15

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIMOTHY EATON

Defendant/Appellant

Sean Doyle, for the Crown/Respondent

Thomas Hicks, for the Defendant/Appellant

HEARD: June 15, 2015

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

Gibson J.

[1] Mr. Eaton appeals his conviction on the charge of driving while over 80 (s. 253(1)(b) of the Criminal Code) by Justice P. Currie in the Ontario Court of Justice at Brampton on June 9, 2014. The incident in respect of which he was charged took place on May 19, 2013.

[2] The Appellant Mr. Eaton submits that the trial judge failed to consider evidence within the Respondent’s case that assists the Appellant, that the trial judge misapprehended the evidence, and that the findings were not supported by the evidence. He submits that this was a clear case where there were insufficient reasonable and probable grounds for the arrest. The Crown submits that the trial judge committed no error in law and that accordingly, the appeal should be dismissed.

Background Facts

[3] The Appellant was tried before the Honourable Justice P. Currie of the Ontario Court of Justice. The Appellant was charged that he did, on May 19, 2013, commit the following offences: impaired driving (s. 253(1)(a) of the Criminal Code); and driving while over 80 ( s. 253(1)(b) of the Criminal Code.)

[4] The Respondent called one witness (the arresting officer) and the Appellant called one witness (himself). The Appellant brought a s.8 Charter application, which was dismissed by the trial judge. The Appellant was found not guilty of impaired driving, and guilty of driving while over 80. He appeals from the dismissal of his s.8 Charter application, and from conviction on the over 80 charge.

Evidence at trial

[5] At the start of the trial, the Appellant made a number of admissions, including date, time, jurisdiction, identity and operation of a motor vehicle. A Certificate of a Qualified Breath Technician was filed as an exhibit on consent. The Appellant confirmed to the trial judge that the only live issue at trial on the charge of over 80 was the s.8 Charter application.

[6] The evidence of the arresting officer, PC Stewart, was that on May 19, 2013 at approximately 10:59 pm, he was on uniform patrol eastbound on Mississauga Boulevard when he saw fireworks in the roadway approximately 50-75 meters ahead of him. There was a lot of smoke. He also saw a group of 10-12 youths walking towards him from the fireworks. They were in the middle of the roadway. PC Stewart stopped his marked police cruiser just past the intersection and spoke to the group of youths, who took responsibility for the fireworks.

[7] PC Stewart then observed the Appellant’s vehicle, which had just come through the smoke and was travelling westbound towards PC Stewart and the youths at what PC Stewart believed to be a high speed. PC Stewart directed the youths to get off the road way and they ran off. He put up his hand in the stop position when the Appellant’s car was still 50 meters away. The Appellant’s vehicle came to an abrupt stop about five feet short of him. PC Stewart thought the Appellant’s vehicle was purposely going to hit him, and he began to draw his firearm.

[8] PC Stewart approached the Appellant’s vehicle and the Appellant began to roll down the rear driver side window until it was about half way down. Then the Appellant rolled down the front driver side window. The Appellant was talking in a very confrontational manner and said “those fucking kids are always doing this.” He was obviously quite upset and his eyes were red-rimmed and glazed over and appeared watery. PC Stewart said “you almost hit me.” The Appellant denied this. The Appellant stepped out of his vehicle in a confrontational manner and then got back in as PC Stewart was talking to him. PC Stewart could smell the strong odour of alcohol on his breath.

[9] Based on the following observations PC Stewart formed the opinion that the Appellant was impaired by alcohol: the driving; rolling down the rear window instead of the front window; how confrontational he was; the odour of alcohol on his breath; and, the appearance of his eyes.

[10] The trial judge found that “on all the evidence before me which I accept, including the speed of the vehicle, the alcohol consumption, the manner of stopping of the vehicle, the reference to the kids involved with the explosives and the opening of the wrong window, it is my view that the arresting officer did have objectively and subjectively reasonable grounds to make an arrest.” (Transcript ruling, p. 95)

Issues

[11] The Appellant submits that the trial judge erred in law by not giving due consideration to significant testimony contained within the Respondent’s evidence and tending to assist the Appellant and impugn the credibility of the arresting officer, including:

i. The admission by PC Stewart that he could not say for certain how fast the Appellant’s vehicle was driving when it approached him;

ii. The admission by the arresting officer in cross-examination that the Appellant might not have been being confrontational but rather expressing his anger about the behaviour of the children;

iii. The purportedly evasive manner in which PC Stewart refused or declined to answer the question of how long it took the Appellant’s vehicle to travel the 50 meters from where he first notice him to where it was when the officer held up his hand for him to stop; and,

iv. The acknowledgement by PC Stewart that he did not observe the Appellant to have any motor skill impairment.

[12] The Appellant submits that the trial judge’s reasons do not give a reasonable indication that the Appellant’s evidence was properly analyzed and evaluated. He submits that the reasons for judgment of the trial judge do not meet the standard required by R. v. Sheppard 2002 SCC 26, 2002] 1 S.C.R. 869 (SCC), R. v. Minuskin 2003 11604 (ON CA), [2003] O.J. No. 5253 (Ont. C.A.) and R. v. W.D.(1991) 1991 93 (SCC), 63 C.C.C. (3d) 397 (SCC).

[13] Finding an error of law due to insufficient reasons requires a two-stage analysis. The reviewing court must first determine whether the reasons given were inadequate. If the reasons were inadequate, the reviewing court must then determine whether the inadequacy prevents appellate review. Where the basis for the verdict is clear on the face of the record, even reasons that are inadequate may not require a new trial: R. v. Gagnon (2006), 2006 SCC 17, 207 C.C.C. (3d) 353 (S.C.C.) at para. 13. In determining sufficiency, a trial judge’s reasons should not be considered in isolation, but viewed in the context of the record, the issues, and the submissions of counsel at trial. The question is whether, in the entire context, the basis for the trial judge’s decision is ascertainable: R. v. M.(R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at para. 37.

[14] I do not find that there was any inadequacy in the trial judge’s reasons. The trial judge’s decision turned on a fairly basic set of facts that did not engage any principles of unsettled law. It is clear that the only live issue at trial was whether or not the Crown had proven on a balance of probabilities that there were reasonable and probable grounds for the Appellant’s arrest. The arresting officer testified that he formed the grounds to arrest the Appellant on the basis of his observations of the Appellant’s driving, his confrontational manner and swearing, the odour of alcohol on his breath, his red-rimmed and watery eyes, and that the Appellant initially rolled down the rear window instead of the front window.

[15] The trial judge stated in his reasons that the real area of factual dispute between the Appellant and the arresting officer was the speed of the Appellant’s vehicle. He reviewed in detail the evidence of both witnesses, and stated that he accepted PC Stewart’s evidence with respect to his cruiser’s location and his own location. The trial judge found that the Appellant was travelling significantly faster than the speed he had testified to. He did not make any finding that the officer was being evasive in his evidence on this subject.

[16] The findings of fact of a trial judge are entitled to deference absent “palpable and overriding error or findings of fact which include factual inferences that are clearly wrong, unreasonable or unsupported by the evidence”: R .v Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127, 203 C.C.C. (3d) 326 (Ont. C.A.) at para. 31. The standard of review on a question of law is one of correctness. This applies to the legal conclusions drawn by the trial judge from the evidence, including whether or not an officer had the requisite reasonable and probable grounds to arrest a motorist: R.v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 20.

[17] Absent a search warrant, it is incumbent on the Crown, pursuant to s.254(3) of the Criminal Code, to establish on a balance of probabilities that an arresting officer had the requisite reasonable and probable grounds to issue a breath demand. This assessment has an objective and subjective component: the arresting officer must honestly believe that a person is committing (or has, within the preceding three hours, committed) an offence under s.253(1) of the Code, and the objective facts must reasonably support his opinion: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, at paras. 48, 63.

[18] Where an appellate court is required to review a trial judge’s conclusion as to whether the officer objectively had reasonable and probable grounds to arrest a motorist for impaired driving, the appellate court is required to show deference to the trial judge’s findings of fact, although the trial judge’s conclusion itself is a question of law reviewable on the standard of correctness: R. v. Bush, 2010 ONCA 554, at paras. 47-48.

[19] I do not discern that in this case the trial judge made any error either in apprehending the evidence, or in his conclusions on the s.8 Charter issue. In my view the trial judge’s conclusion that PC Stewart had the requisite reasonable and probable grounds on both an objective and subjective basis, is supported by the evidence. The arresting officer’s observations concerning the driving, behaviour and appearance of the Appellant were sufficient in this regard, and the trial judge did not error in his apprehension or appropriate consideration of them.

[20] Accordingly, the appeal should be dismissed.

Disposition

[21] The appeal is dismissed. The stay of the driving prohibition is vacated.

Gibson J.

Released: December 15, 2015

COURT FILE NO.: SCA(P) 302/14 Brampton

DATE: 2015-12-15

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TIMOTHY EATON

Defendant/Appellant

REASONS FOR JUDGMENT

Gibson J.

Released: December 15, 2015