CITATION: R. v. Toth, 2016 ONSC 1112
COURT FILE NO.: 4326/15
DATE: 2016/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
L. Scaringi, for the Respondent
Respondent
- and -
Rose Anne Toth
J. R. Charlebois, for the Appellant
Appellant
HEARD: February 5, 2016
The Honourable Mr. Justice P. R. Sweeny
ENDORSEMENT
[1] The appellant, Rose Anne Toth, was convicted of operating a vessel with over 80 milligrams of alcohol in 100 milliliters of blood by Justice A. J. Watson on May 25, 2015. The appellant raises four grounds of appeal:
(1) the trial judge misapprehended the evidence and failed to consider relevant evidence;
(2) the trial judge made some findings of fact in her reasons for judgment not before the court;
(3) the trial judge used “motive” in regard to credibility and lack of reasons; and
(4) the trial judge shifted the onus to the defence.
[2] In her 20-page, 81-paragraph Reasons for Judgment, the trial judge reviewed, in detail, the evidence of the two police officers called by the Crown and the five witnesses called by the defence.
[3] The trial judge’s overview of the evidence clearly sets out the essential issues to be decided:
At this trial Police Constable Timothy Eaton testified that upon his approach to the vessel, he observed that the vessel engine was on and he positively identified the defendant as being at the helm and operating the vessel. The defendant testified that she was not operating the vessel and indeed was nowhere near the helm when the police approached. According to the defendant the vessel engine had been turned off and the vessel was adrift with no one behind the helm when the police approached. The defendant asserts that although she is a part-owner of the vessel and was at the helm when they had travelled earlier in the evening to Templeton’s Restaurant in the Erie Basin, her friend Deeann also known as Deedee McMahon who had not consumed any alcohol had operated the vessel from Templeton’s to where they were approached by the Marine Unit. The defendant testified that because she had consumed alcohol at Templeton’s she did not want to risk either the safety of the vessel or its crew nor did she wish to risk being stopped by the police whom she suspected may be in the area. Deedee McMahon testified that she had not consumed any alcohol and that although she did not have a permit to operate a vessel, she had operated the vessel at all times after leaving the Erie Basin. Andreana Maxwell, who was a passenger in the vessel corroborated the evidence of both the defendant and Deedee McMahon. Their evidence was in part further corroborated by the defendant’s brother and his wife who were in the second vessel who both testified that it was Deedee McMahon and not the defendant who was at the helm when they left in tandem from the Erie Basin.
The issues that have been identified at this trial are ones of both the reliability and the credibility of the evidence and whether the Crown has proved that the defendant was operating the vessel at the time of the alleged offence beyond a reasonable doubt.
Trial Judge Misapprehended the Evidence and Failed to Consider Relevant Evidence
[4] In R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911, the Court of Appeal discussed the uphill battle the appellant has in seeking to succeed an appeal with a misapprehension of evidence argument. The Court stated at paras. 30 and 31:
30 Thus, to warrant appellate interference, the misapprehension at issue “must be material rather than peripheral to the reasoning of the trial judge”. In addition, the error identified “must play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: Lohrer, at para. 2; C.L.Y., at para. 19. A mere misstatement or inaccuracy in the trial judge’s treatment of the evidence does not constitute a reversible error: T.T., at para. 33.
31 Moreover, credibility is a question of fact. On factual matters, it is a reviewing court’s responsibility to afford due deference to the advantageous position of the trial judge who actually saw and heard the witnesses: R. v. Cresswell, 2009 ONCA 95, at para. 14; R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 46.
[5] The appellant raises issues with the reliability of the evidence of P.C. Eaton. The issues raised by the appellant were addressed by the trial judge in her reasons. She found that the impugned areas of P.C. Eaton’s evidence were not material. After reviewing the specific areas pointed out, she specifically stated:
… I do not find any of the areas of evidence cited by the defence to be material as to the reliability of P.C. Eaton’s evidence that the defendant was at the helm and was seen by him to be operating the vessel upon the police approach in the context of the totality of the evidence….
[6] The trial judge specifically addressed the defence evidence that the engine had been shut off and was adrift and the defendant was nowhere near the helm of the vessel. The contrasting evidence between the parties on that main issue was the focus of the trial judge’s analysis. I agree that the officer’s failure to note a tube in the boat, the swimming platform at the back of the boat, and failing to recall what the other two women in the boat were wearing, are not material or relevant to his observations with respect to the defendant operating the vessel. I also note that the cooler observed on the dash in a koozie could easily look like it was in a cup holder. There was no misapprehension of the evidence with respect to the testimony of P.C. Eaton.
Findings of Fact in Reasons for Judgment not Before the Court
[7] The trial judge observed that none of the defence witnesses spoke up to say the defendant was not operating the vessel. The appellant asserts that there was no evidence on that issue. The trial judge is entitled to draw reasonable inferences from the evidence. The trial judge makes the reasonable observation that none of the four defence witnesses ever told the officer that the appellant was not operating the vessel. She is using the failure of the witnesses to comment as a factor in weighing her assessment of the credibility of the evidence of the witnesses. This was not a determining factor. This finding cannot be viewed in isolation, but must be viewed in the context of the totality of the evidence including the comments made by the appellant to the breathalyzer technician. The trial judge is observing the absence of conduct which would have been a reasonable reaction if the appellant had not been operating the vessel at the relevant time. It was an issue directly raised by the trial judge during the closing submissions of counsel for the appellant.
Use of “Motive” in Regard to Credibility and Lack of Reasons
[8] In her reasons, she specifically commented that the evidence of both Ms. McMahon and Ms. Maxwell “sounded extremely rehearsed”. The appellant asserts this statement is merely a conclusion. The statement is a direct comment on the credibility of those two witnesses. The trial judge articulated the competing stories. She accepted the story of the police officer and did not accept the story of the defendant and her two friends. One of the factors was that the evidence appeared to be rehearsed, suggesting collusion (although she did not use that word). She had the ability to observe the witnesses. She commented on the manner in which they gave their evidence. The appellant clearly knows why the trial judge decided as she did. She did not believe her or the evidence of Ms. McMahon and Ms. Maxwell.
[9] The trial judge’s comment with respect to motive is an observation that the defence witnesses were not independent. They were friends and family of the appellant, which could give them a reason to lie. The trial judge was perhaps too circumspect in her language, but her decision is clear.
Shifting of Burden
[10] The appellant was questioned by the breathalyzer technician P.C. Shane Schedler. The appellant was asked: “Were you operating a vessel?” to which she replied “Yes”. A series of other questions were asked. The trial judge found that, in the context, her answer would not be appropriate if she had not been operating the vessel. The appellant was not obligated to say anything, but as the Court of Appeal noted in R. v. Minhas, 1986 144 (ON CA), [1986] O.J. No. 745:
It may be that, under certain circumstances where an accused has chosen to answer some questions and has refused to answer others, his or her answers to the questions asked should be considered as a whole, and in the context of his or her refusals to answer other questions: see Woon v. R. (1964), 109 C.L.R. 529 (Aus. H.C.), per Windeyer J. at p. 542.
[11] The trial judge heard the explanation given by the appellant in her evidence at trial and did not accept that evidence, which was contrary to the plain understanding of the answers to the questions that she gave to P.C. Schedler.
[12] This is not a case where the trial judge did not give adequate reasons. A thorough examination of the evidence, together with her specific determination that the police officers’ evidence was credible and the defence evidence was not, provides an adequate explanation for her findings. This was a relatively straightforward case which turned on the credibility of the witness. The trial judge understood the issues and addressed all relevant evidence. The reasons of the trial judge are supported by the evidence.
[13] The appeal is dismissed.
Sweeny J.
Released: February 12, 2016
CITATION: R. v. Toth, 2016 ONSC 1112
COURT FILE NO.: 4326/15
DATE: 2016/02/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
Rose Anne Toth
Appellant
ENDORSEMENT
Sweeny J.
Released: February 12, 2016