R. v. Grafe, 2015 ONSC 971

COURT FILE NO.: 14-0302

DATE: 20150225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

PETER GRAFE

Appellant

STEPHANIE TURNER, for the Respondent/Crown

Aaron Wine, for the Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable N.S. Douglas,

Dated May 27, 2014]

DURNO, J.

[1] Marco Del Rosario and his wife testified the appellant passed their vehicle and slammed on his breaks causing them to drive into the back of his truck. The appellant testified he passed the Del Rosario’s vehicle because it was going onto the shoulder of the road causing stones to fly onto his vehicle. Shortly thereafter his engine quit. Despite the appellant tapping his brake lights to let them know he had lost power, Mr. Del Rosario was texting while driving, did not see the appellant and drove into the back of his truck.

[2] The trial judge rejected the appellant’s evidence and accepted the Del Rosarios, convicting the appellant of dangerous driving.

[3] Mr. Grafe appeals contending the verdict was unreasonable, that the trial judge applied an uneven level of scrutiny to the Crown and defence evidence and in doing so demonstrated bias against the appellant.

[4] For the following reasons, the appeal is dismissed.

The Trial Evidence

[5] Marco Del Rosario was driving his Honda Pilot SUV to a baptism. His wife, Rebecca, was in the front passenger seat and their two children were in rear seat car seats. Mr. Del Rosario moved without incident from the curb lane to the left because Highway #7 merged from four to two lanes. Ms. Del Rosario said that from her front passenger seat she saw a truck behind them but it was sufficiently far behind that their merge did not impact on the truck. Mr. Del Rosario said he saw nothing from the truck to indicate that the driver was upset about his merge to the left. The appellant testified that the Del Rosario’s merge to the left was unremarkable.

[6] Both vehicles turned right onto the Guelph-Eramosa Townline. The appellant sped up, passed the SUV in what Mr. Del Rosario regarded as a dangerous pass because the appellant drove too close to the SUV. Before he pulled into the lane they were in, the appellant got four to five lengths in front of the SUV and twice applied his brakes hard. Despite slowing down and trying to hit his brakes, Mr. Del Rosario was unable to stop and collided with the rear end of the appellant’s truck.

[7] Mr. Del Rosario said that after the collision both drivers got out. He called the appellant a “fucking idiot.” The appellant said, “Well – yeah - you cut me off back there. Now you’re going to pay.” The appellant denied making the statement but agreed that there was a confrontation in which both swore. Ms. Del Rosario was in the car and did not hear any conversation.

[8] The Del Rosario’s vehicle suffered a “mashed in” license plate while the appellant’s truck had an estimated $800 damage.

[9] The Del Rosarios both testified that when the paramedics arrived the appellant waved the ambulance on, effectively indicating that no one was injured. Neither counsel asked the appellant whether he had done so. Rebecca Del Rosario testified they had to wave the ambulance back to check out their children who said their necks hurt.

[10] Marco Del Rosario denied he was talking on his cell phone or texting while driving. He did nothing to contribute to the accident. Had he done so, it would have been the appellant who called the police and not him.

[11] The appellant testified that after the vehicles turned right, the SUV was weaving onto the shoulder and kicking up gravel. To avoid the stones, he passed the SUV, looked in his rear view mirror and could see the driver texting, moving his thumbs back and forth. That is why the SUV hit him, because the driver was not paying attention and was texting.

[12] After he passed the SUV the appellant’s engine “cut out.” He applied the brakes and came to a gentle stop, nothing sudden. However, the other driver was using his cell phone, failed to notice the brake lights and was unable to stop in time. When the truck cut out, the appellant put it in neutral, depressed the brake twice to let the SUV driver know he was slowing down, and came to a stop, on the officer’s estimate, 400 metres from the turn. He did not pull to the side of the road because he had faith that he was going to get it started and did not know “it was going to happen again.”

[13] After the accident he got out of his truck and asked the SUV driver, “What the f’ was his problem?” Mr. Del Rosario called him a “fucking idiot,” said that he was on his way to a baptism, was late and was going to call the cops. That was the only conversation between the two men.

[14] After a while the appellant got his truck started and they both pulled over to the side of the road. Before that date he had never had any problems with the truck. It had happened to him once after the accident but after about fifteen minutes he wiggled the battery cables and it started.

[15] In examination-in-chief, the appellant was asked if he was mad after the merge. He said he was not. In cross-examination, he was asked when he got mad and said, “When I started getting pelted by gravel from him bouncing off the shoulder of the road. But not enough to do what he claims I did.” When the Crown inaccurately suggested that he had said in examination-in-chief that he got mad, the appellant said he was irritated and not mad after the accident. He explained that irritated meant he was in control and mad meant he would punch someone.

[16] After the police arrived and investigated, the appellant started his vehicle and drove away. After the incident he had given his truck to his daughter to drive. However, shortly after doing so, he learned that it was no longer running.

[17] In cross-examination the appellant was asked,

Q: … how did you feel when you thought you saw Mr. Del Rosario texting?

A: While I’m sitting there, I’m thinking this guy is lying through his teeth to cover up the fact that he rear ended me.

[18] Later in cross-examination he was asked:

Q: Well like if somebody in front of you is a problem; what do you do to stay out of their way?

A: I stay out of their way. If somebody is a problem; why would you want to be there?

Q: Exactly, unless you wanted to cause them a problem. Do you find this funny?

A: Yes, I did.

Q: Why? What was funny about this?

A: I think I already --- why would I cause him a problem?

Q: Because you were mad at him for spewing the gravel up?

A: Not mad enough to slam on the brakes.

Q: But you were mad”

A: I was irritated.

[19] Further,

Q: And so, did you think that he would be at fault for the collision?

A: I didn’t think that he was going to hit me. No, I did not think that he would be at fault. I didn’t think the thing was going to happen.

Q: What did you think he’d do?

A: I’m not a psychic. I’m sorry I …

MR. WINE: Two issues

A: This is getting ridiculous.

THE COURT: I’ll decide whether it getting ridiculous or not, sir.

A: I’m sorry.

THE COURT: Your job is to answer the questions unless there is an objection. There is now an objection at which I am going to have an opportunity to rule.

A: Thank you.

[20] Finally,

Q: Right and so you knew that when you had left the scene of the collision, there was an issue about who was at fault or what the police were going to do?

A: To be honest, I assumed that he was going to get nailed with following too closely. That’s why I did not tell the police officer about the texting, because I did not want to compound it. Instead of answering his question, I told the officer, I did not want to answer that question.

The Reasons for Judgment

[21] After reviewing the applicable law, His Honour turned to his assessment of the witnesses. He found the Del Rosarios to be “intelligent, articulate and credible people.” They answered all questions directly. Neither embellished things although there was lots of opportunity to do so. Their speed estimates were qualified and His Honour found there were no major inconsistencies. Later, he found Mr. Del Rosario to be credible and trustworthy. He admitted he got out of his vehicle and called the appellant a “fucking idiot.” It was incredible that a man like that with three loved ones in his car would be bouncing off the shoulder of the road, texting continuously and spewing up gravel. The trial judge found he believed the Del Rosarios and noted that Mr. Del Rosario was “completely sober” with no axe to grind with anybody.

[22] His Honour noted the appellant had not told the officer that Mr. Del Rosario was texting because he was going to get nailed for following too close. If the appellant was telling the truth about “all this texting” why did he not tell the police? Not to have told the officer made no sense at all. It told the trial judge that the appellant was picking and choosing what he told the police.

[23] His Honour continued that he did not know what the appellant said to the police. The Crown did not lead it. The defence did not ask the appellant about it. He volunteered in the witness box under oath that was why he did not tell the police. That was his evidence and His Honour could use it. While the trial judge did not know what the appellant told the police he did know that for some reason, he did not tell the officer the whole truth.

[24] The trial judge next concluded he did not believe Mr. Grafe and rejected his evidence. He did so because of the combative manner in which he testified and in cross-examination he often did not answer the question directly. He answered questions with questions. He embellished his language using terms like, “throwing gravel at his truck,” “pelting his truck,” and “lying through his teeth to make up for his rear ending me.” He told the Crown that she was not there, that she was wrong, that he had already answered that question, and that “this is getting ridiculous,” At one point, he laughed derisively at the Crown’s suggestion.

[25] In addition, there were parts of his account that did not stack up with common sense. Had his truck “cut out” that would have been the first thing he would have said to the other driver, not “what the fuck is your problem?” It was absolutely clear that he was angry at the SUV driver. The appellant had gone round and round the mulberry bush about whether he was mad or whether he was irritated. His Honour also noted the appellant gave the truck that had just cut out in the middle of traffic to his daughter without getting it fixed. His Honour concluded the appellant’s account that his truck ‘cut out’ was “simply incredible.”

[26] The trial judge found parts of the appellant’s evidence made no sense at all and continued:

He described the accused driving this truck – driving his car rather. He described the witness, Mr. Del Rosario, as driving his car with his wife in the passenger seat and his two small children in booster seats in the back. He says, he was bouncing off the shoulder; he was texting all the way from Brelsau to the accident scene; throwing gravel on my truck; he was texting and so, he was getting irritated with him and all of this action – this is a man at one o’clock in the afternoon on a Sunday with his family going to a baptism; completely sober; no axe to grind with anybody, impressed me as a credible, trustworthy gentleman who admitted that he got out of his car and called the accused a “fucking idiot.” …

[27] His Honour concluded that for whatever reason, whether he was cut off or the gravel being thrown towards his truck, the appellant was angry. The trial judge found that, because he believed the Del Rosarios, that the appellant believed he was cut off at the merging. He passed the SUV and had it in his mind to brake suddenly. His Honour found that what put a lie to the appellant’s account that his truck “cut out” was Rebecca Del Rosario’s evidence that after the accident the appellant “pulled up a bit after the initial impact. Accordingly, his vehicle was still running.

[28] The trial judge found this was an incident of road rage. He was dealing with someone who had “lost it,” and what they could do cannot be predicted. His Honour found the appellant deliberately braked suddenly in front of the SUV “out of his anger at this car behind him.” That conduct was a marked departure from the standard of care expected of a reasonable driver in the appellant’s circumstances.

Was the verdict unreasonable?

[29] Since success on this ground ends the appeal with an acquittal, it is appropriate to deal with it first. The law is not in dispute:

[30] The test for an unreasonable verdict was examined by the Court of Appeal in R. v. Willocks (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 as follows:

[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).

[31] The test is not whether it was the only verdict. Rather, it is whether the verdict was a reasonable verdict. R. v. Portillo (2003), 146 C.C.C. (3d) 467 (Ont. C.A.)

[32] I am not persuaded the verdict was unreasonable. That another judge might have reached a different verdict is not the test. Here, there was evidence from which the trial judge could find: 1) the appellant thought the Del Rosario’s vehicle cut him off as they merged in front of the appellant based on his statement His Honour accepted was made, 2) he passed their car too closely based on Mr. Del Rosario’s evidence that the trial judge accepted, and 3) he returned to their lane and slammed on his brakes leaving them insufficient room to stop even though the driver was paying attention based on the Del Rosario’s evidence that he accepted. Those findings support a finding of dangerous operation.

[33] In addition, as the Court of Appeal has recently reiterated, a verdict based on credibility assessments is unreasonable only if “the trial court’s assessment of credibility cannot be supported on any reasonable view of the evidence.” R. v. Magno 20125 ONCA 11 at para. 73, citing R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474 at para. 7. Clearly, the trial court’s assessment of credibility can be supported on a reasonable view of the evidence.

Did the trial judge apply an uneven level of scrutiny to the Crown and defence evidence?

[34] The challenges faced by an appellant raising this ground of appeal were recognized by the Court of Appeal in R. v. J.H. (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 at para. 59:

This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out relevant legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps somewhere in the record that make it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant.

[35] In J.H., the appellant argued that the trial judge dealt with the portions of the complainant’s evidence he found to be untrue differently than he dealt with the portions of the appellant’s evidence he found to be untrue.

[36] The appellant contends the trial judge’s uneven scrutiny resulted in His Honour demonstrating bias against the appellant. He also contends that the trial judge “filled in facts or assumed facts not in evidence to bolster the version being portrayed by the Crown’s case, and in doing so, demonstrated a bias against the appellant.” With the argument framed in that way, I will address the various areas raised by the appellant under the uneven scrutiny ground before turning to whether His Honour’s analysis of the evidence demonstrated bias.

[37] The appellant submits the trial judge displayed his uneven approach to assessing the Crown and defence witnesses by finding the Del Rosarios were “intelligent, articulate, credible people” while finding the appellant “combative” and impugned his credibility because in cross-examination he often did not answer questions directly. The appellant contends that a review of the transcript reveals no occasions when Mr. Grafe failed to answer a question directly. I disagree.

[38] The following excerpts illustrate His Honour’s point:

Q: If you thought that the vehicle could cut out at any time, you would not want your daughter to be in harm’s way, correct?

A: Like I said, I wiggled the battery cable and I thought it --- I thought that was the problem to begin with. A loose battery cable; it wasn’t,

Q: I don’t think that you answered my question.

A: Oh, I’m sorry.

Q: You wouldn’t want to give your daughter a vehicle that could cause her to come into harm’s way; correct?

A: I’m a good parent.

Q: Meaning that you wouldn’t want to give her a …

A: Correct

Q: … vehicle that could …

A: Correct

Q: … cut out like you say, yours did on that day?

A: Correct

Q: So, on your evidence, this cutting out of the vehicle must have come as a complete and utter surprise?

A: I put it into neutral and I was trying my best to get it started to avoid any problem. I checked the rear view mirror a couple of times. I did not see a problem. When I came to a stop I looked in the rear view mirror. He was far back enough that he could have easily passed me or stopped. He didn’t.

Q: My question sir, was; whether or not the cutting out of your vehicle, as you described it, came as a complete and utter surprise to you?

A: Yes – yes.

Q: Is there a difference in your view, between mad and irritated?

A: Yes.

Q: What’s the difference?

A: A collision

Q: I don’t understand that answer; can you help us understand?

A: I – like I had mentioned, my back is screwed. Why would I cause an accident that’s going to make my back worse?

Q: … Well when you believed that Mr. Del Rosario was texting; what did you think about?

A: Well he claims that I passed him shortly after we made the turn and slammed on the brakes. But yet the officer behind you claims that the accident happened four hundred meters down the road.

Q: How is that responsive to the question; how did you feel when you thought you saw Mr. Del Rosario texting?

A: While I’m sitting there, I’m thinking this guy is lying through his teeth to cover up the fact that he rear ended me.

Q: I’m asking you; at the time that you are driving, sir.

A: oh – oh. Like in what regard do you mean?

Q: Well, what did you think of it when …

A: were we still on the pardon – pardon?

Q: Are we still on what?

A: On this mad issue.

Q: No we’re …

A: I did not cause an accident. I’m sorry.

[39] There was ample evidence upon which the trial judge could conclude the appellant at times gave unresponsive answers. The appellant’s submission that his “lying through his teeth” reference related to what Mr. Del Rosario told the officer at the roadside is not borne out by the references noted above. Whether the appellant was “lost in the exchange,” as the contended on appeal, or being unresponsive was His Honour’s call to make.

[40] His Honour also correctly found that the appellant often answered questions with his own questions.

[41] The appellant next submits the trial judge displayed uneven scrutiny by finding the appellant “embellished his evidence” and that none of the examples given by the trial judge actually demonstrate embellishment. To ‘embellish’ is to “beautify, adorn” or “to add interest to a narrative with fictitious additions.” The Concise Oxford Dictionary, Ninth Edition,

[42] The trial judge did not say the appellant embellished his evidence in the sense of expanding its content or adding interest to the narrative with fictitious accounts. What His Honour said was the appellant’s language was embellished by using terms like, “throwing gravel” at his truck, “pelting my truck,” the witness was “lying through his teeth to make up for his rear ending me,” and telling the Crown that she was not there, she was wrong, he had already answered the question and it was getting ridiculous.

[43] The trial judge provided oral reasons after counsel had completed their submissions. His Honour found the appellant’s language to be embellished and provided the examples noted in the paragraph above. Those listed provide examples of what could be viewed as embellished language such as lying through his teeth as well as further examples of the appellant’s not answering questions and being combative.

[44] I agree that not all of the examples could be described as embellishments; “throwing gravel at my truck” and “pelting my truck” are common descriptions of what he was attempting to describe. However, I am not persuaded the trial judge displayed uneven scrutiny in his comments. I am unable to say that none of the examples display embellishment of language. While the appellant’s argument is that no judge could have drawn inferences from these comments, and I agree that not every judge would have drawn the inferences His Honour did, I am unable to conclude that the trial judge erred as alleged. Even if some of the examples were more illustrative of the appellant’s combativeness and/or poor attitude while testifying than embellishing his language, the error resulted in no substantial wrong or miscarriage of justice.

[45] The appellant next contends the trial judge displayed uneven scrutiny when he drew an adverse inference from the appellant laughing “derisively” when asked a question in cross-examination. Crown counsel asked the appellant if somebody in front of him was a problem, what he did to stay out of their way. The appellant responded, “I stay out of their way.” How the appellant laughed and its impact was for the trial judge to determine. As for the appellant’s submission it was “a somewhat silly question,” he goes on to explain that what the Crown wanted the appellant to say was he should have dropped back. Viewed in that context, it was not a silly question. Again, how the trial judge assessed the appellant’s laughter was His Honour’s call. He had the distinct advantage of seeing and hearing it.

[46] The appellant next submits the uneven scrutiny ground is supported because while the trial judge criticized the appellant for laughing at a question in cross-examination, yet failed to apply the same level of scrutiny when he did not mention Mr. Del Rosario’s “moment of humour” when he was speaking to the investigating officer at the roadside and said that there was no deer on the road that caused the appellant to slam his brakes on. He explained that it was a clear day and that you would slow down if you saw a deer. His point was there was nothing in front of the appellant. Mr. Del Rosario explained, “It was “kind of like a joke, yeah there was a deer there. No, there was no deer there; it was just a joke.”

[47] First, I am not persuaded that a driver making a joke while an officer is investigating a minor traffic accident and a witness laughing derisively when being cross-examined in court are the same thing. In the former, it was the speaker who injected humour into his interview. In the latter, it was the listener who found something funny about a question. Second, this issue was never raised with the trial judge although in fairness to the appellant, the appellant’s reaction to the question in cross-examination was not raised in submissions.

[48] Next, the appellant submits that His Honour reversed the burden of proof when he found that if the appellant’s vehicle had cut out, his first comment to Mr. Del Rosario would not have been, “What the fuck’s your problem?” It would have been that he was sorry.

[49] I am not persuaded the trial judge reversed the burden of proof or displayed uneven scrutiny in this area. His Honour was entitled to draw inferences from the evidence. The appellant said that the vehicle had unexpectedly cut out, the other driver did not see the appellant stopping and drove into the appellant because he was texting. While the inference His Honour drew was not the only inference to be drawn from the appellant’s initial comments to Mr. Del Rosario, it was not unreasonable nor did it display uneven scrutiny. That the appellant never mentioned his vehicle had cut out was a factor for His Honour to consider in determining whether he accepted the appellant’s evidence or it left him in a state of reasonable doubt. That another judge may not have drawn that inference is not fatal. It was not a situation where he was speaking to an investigating officer and an adverse inference was drawn or suggested from the failure to tell the officer of his defence. R. v. W.L. 2015 ONCA 37 He was speaking to the other driver and made a comment that it was open to infer was inconsistent with his trial explanation.

[50] Neither am I persuaded that His Honour erred in failing to give the appellant credit for candidly admitting he lost his temper and swore. The submission implies that a trial judge must mention every piece of evidence and inference drawn from it. That is not the law as I understand it.

[51] With respect to the trial judge’s rejection of the appellant’s evidence that his truck cut out, the appellant concedes the trial judge was not required to accept that evidence or find it raised a reasonable doubt. That the evidence was not contradicted does not mean His Honour had to find it at least raised a reasonable doubt.

[52] Next, the appellant submits that His Honour’s analysis of Mr. Del Rosario’s evidence is flawed because he found it was incredible that a man like Marco Del Rosario “with three of his loved ones in his car, would be bouncing off the shoulder or the road, texting continuously, spewing up gravel.” The appellant finds two faults with the analysis. First, there was no evidence the appellant knew the children were in the vehicle. I agree that at another point in his Reasons the trial judge says the appellant knew the Del Rosario’s children were in the back seat. (see para. 26 above) However, at this point in his Reasons, His Honour’s point was that a father would not be driving in that manner if he was aware his children were in the car. While not an inference every trial judge would have drawn, it was open to His Honour to do so. His Honour’s reliance on knowledge the children were in the car at that point of the Reasons had nothing to do with the appellant’s awareness they were in the back seat.

[53] As regards the trial judge’s reference to the appellant knowing the children were in the car, since no one ever asked the appellant whether he knew the children were in the car, it would be speculative to find he knew on this record. However, I am persuaded that the misapprehension of the evidence, occasioned no substantial wrong or miscarriage of justice. As the Court of Appeal held in R. v. Khan [2014] O.J. No. 5403; 2014 ONCA 795, misapprehension of evidence involves a stringent standard citing R. v. Loher 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 1-2 and the standard is met only where the judge is mistaken about the substance of material parts of the evidence and those errors played an essential part in the reasoning process resulting in a conviction, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.)

[54] Second, the appellant submits that it was not his evidence that he observed Mr. Del Rosario texting all the way from Breslau. Accordingly, the trial judge misapprehended the evidence and filled in gaps in the evidence. At page 83 of the transcript the appellant said, “Well, I thought I had made that clear. He was texting all the way from Breslau to the accident site.”

[55] The appellant next submits that His Honour displayed uneven scrutiny and bias when he bolstered Mr. Del Rosario’s evidence finding he was sober and going to a baptism yet did not find the appellant’s sobriety and driving to visit his children was equally enhancing. His Honour considered that Mr. Del Rosario was driving with his children in the car going to a baptism and had not consumed alcohol in assessing his credibility and reliability. When assessing the appellant’s evidence, the trial judge provided a number of bases upon which he found the appellant’s evidence to be incredible and that it did not raise a reasonable doubt. While His Honour might have considered the appellant’s sobriety and where he was going as factors to consider in assessing his credibility, the reasons provided by the trial judge amply supported the adverse credibility findings regarding the appellant.

[56] Next, the appellant submits that on the trial judge’s analysis there was no reason for road rage because the Del Rosarios were not “bouncing off the road” and throwing stones up at the appellant’s truck and that there was nothing remarkable about the merge. Accordingly, His Honour’s findings are inconsistent. The problem with the appellant’s analysis is that it ignores the appellant’s comment that he had been cut off. The Del Rosarios said there was nothing remarkable about the merge as did the appellant. The trial judge was not required to accept Mr. Grafe’s evidence on that issue. Indeed, the trial judge found as fact that the appellant believed he had been cut off, whether that was accurate or not.

[57] As regards His Honour’s use of the appellant’s volunteered evidence that he did not tell the officer Mr. Del Rosario was texting because he did not want to make things worse for Mr. Del Rosario who was going to be charged with following too close, it was not unreasonable for His Honour to draw an adverse inference. What the appellant argues is that it was an error for the trial judge to draw an inference that was open to be drawn but might not have been drawn by another judge. That is not a valid ground of appeal.

[58] Finally, as regards the finding the appellant waived the paramedics indicating there was no one needing their services, I agree that there was no evidence the appellant knew there were three children in the car. If the finding was based on that reasoning, His Honour erred. However, as I read the evidence, Ms. Del Rosario had not got out of their car before the police arrived and there was no discussion between the drivers regarding any injuries. In these circumstances, I am unable to find the trial judge erred or displayed uneven scrutiny. If he did proceed on the basis the appellant knew the children were in the vehicle it occasioned no substantial wrong or miscarriage of justice. Neither counsel asked the appellant whether he had waived on the ambulance.

[59] I am not persuaded the trial judge displayed uneven scrutiny in assessing the witnesses. That a trial judge does not believe a witness and believes others does not establish uneven scrutiny nor does unsupported suggestions of filling in evidence that did not exist. I am not persuaded the appellant has met the test outlined above by Doherty J.A.

Did the trial judge display a reasonable apprehension of bias?

[60] The Supreme Court of Canada provided the following test where it is alleged a trial judge’s conduct of the trial displayed a reasonable apprehension of bias in R. v. R.D.S. 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, starting at para. 31:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

The grounds for this apprehension must, however, be substantial and I ... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".

33 Notwithstanding the strong presumption of impartiality that applies to judges, they will nevertheless be held to certain stringent standards regarding bias -- "a reasonable apprehension that the judge might not act in an entirely impartial manner is ground for disqualification": Blanchette v. C.I.S. Ltd., 1973 CanLII 3 (SCC), [1973] S.C.R. 833, at pp. 842-43.

The Reasonable Person

36 The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice and Liberty, supra.) The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.

37 It follows that one must consider the reasonable person's knowledge and understanding of the judicial process and the nature of judging as well as of the community in which the alleged crime occurred.

49 Before concluding that there exists a reasonable apprehension of bias in the conduct of a judge, the reasonable person would require some clear evidence that the judge in question had improperly used his or her perspective in the decision-making process; this flows from the presumption of impartiality of the judiciary. There must be some indication that the judge was not approaching the case with an open mind fair to all parties. Awareness of the context within which a case occurred would not constitute such evidence; on the contrary, such awareness is consistent with the highest tradition of judicial impartiality

[61] Having reviewed the transcript, the facta and counsels submissions, I am unable to determine any basis upon which a finding of bias or a reasonable apprehension of bias could be based.

[62] While the appellant linked his uneven scrutiny ground with demonstrated bias, I am not persuaded the two are as intertwined as the appellant asserts. The criteria for a reasonable apprehension of bias need not be repeated. That a judge finds against one party does not establish a reasonable apprehension of bias, nor would a finding of uneven scrutiny of evidence in itself lead to that conclusion. Uneven scrutiny can exist without a reasonable apprehension of bias. Similarly, a misapprehension of the evidence can result in reversible error without demonstrated bias or a reasonable apprehension of bias.

[63] What is required is clear evidence from a reasonable person’s perspective that His Honour would not decide the case fairly, that he was not impartial, and/or was not approaching the case with an open mind. Other than the alleged uneven scrutiny allegation, the appellant has not directed me to any other basis upon which to find there was a reasonable apprehension of bias or actual bias.

Conclusion

[64] The appeal is dismissed.

DURNO J.

Released: February 25, 2015

COURT FILE NO.: 14-0302

DATE: 20150225

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

PETER GRAFE

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable N.S. Douglas, Dated May 27, 2014]

Durno J.

Released: February 25, 2015