CITATION: R. v. Maitland, 2016 ONSC 1737
COURT FILE NO.: 66/15
DATE: 20160310
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew McLean, for the Respondent
Respondent
- and -
GERALD MAITLAND
Charles Wagman, for the Appellant
Appellant
HEARD: March 2, 2016 at Milton
REASONS FOR JUDGMENT
[On appeal from the convictions by A.D. Cooper J. dated April 27, 2015]
F. Dawson J.
[1] Gerald Maitland appeals from his convictions for impaired driving, contrary to s. 253(1)(a) of the Criminal Code, and for refusing to comply with a demand that he provide samples of his breath, contrary to s. 254(5) of the Criminal Code. The convictions were entered on April 27, 2015 following a trial that took place before Justice A.D. Cooper of the Ontario Court of Justice on September 3, 2014 and February 4, 2015.
[2] Four police officers testified for the Crown. The accused testified in his own defence.
[3] The accused drove to a gas station at about 1:00 a.m. to purchase cigarettes. He testified that he had consumed one beer and one glass of wine before doing so. He denied that his ability to drive was impaired by the consumption of alcohol but said that he was very tired because he had been up for over 20 hours.
[4] Four police officers had been conducting a RIDE program on Trafalgar Road in Oakville close to the gas station attended by the accused. Two of the officers were waiting for the other two officers to finish investigating a minor accident in the same area. Cst. David Shanly, one of the waiting officers, was approached by someone who told him that a man operating a Jeep motor vehicle at the gas station nearby appeared to be impaired.
[5] Cst. Shanly drove to the gas station. As he entered the parking lot he saw the Jeep driving out onto the roadway. He followed and activated his emergency lights. He was joined by Cst. Graul who was in a separate police vehicle. When the Jeep did not pull over both officers activated their sirens as well as their emergency lights. They then boxed the Jeep in and brought it to a stop. The appellant was the driver.
[6] The appellant testified that he was initially unaware that the police were behind him. When he finally noticed the lights behind him and heard a “whoop” sound he thought an emergency vehicle wanted to pass him. The evidence indicated that it was a short distance from the gas station to the location where the appellant’s vehicle was stopped and that there was a dip in the road and an overpass which affected sightlines.
[7] The other officers then arrived on the scene. The officers decided that Cst. Van Maaren, one of the officers who arrived after the appellant had been stopped, would become the arresting officer. The other officers were going off shift and Cst. Van Maaren was willing to work overtime.
[8] Each of the officers gave evidence that the accused exhibited signs of impairment by alcohol. The appellant was arrested for impaired driving at 1:59 a.m. He had been observed driving at 1:56 a.m. A demand for breath samples was made pursuant to s. 254(3) of the Criminal Code at 2:05 a.m. Rights to counsel were given at 2:07 a.m. The appellant was transported from the scene at 2:17 a.m. and arrived at a police station at 2:25 a.m.
[9] Cst. Catherine Robertson was the breath test technician. She arrived at the police station at 2:20 a.m. and readied the Intoxilizer machine. The evidence was that it took approximately 13 minutes to do so. Therefore, the machine would have been ready by about 2:33 a.m. However, the appellant was not brought to the breath test room until shortly before he refused to provide breath samples. That refusal, which is recorded on the breath room video, was at 3:17 a.m.
[10] Some evidence was adduced to address the delay. Cst. Van Maaren testified that at the police station he called duty counsel, although the appellant had said at the roadside that he did not want to speak to a lawyer. Cst. Van Maaren was not sure why he placed the call to duty counsel. The appellant spoke to duty counsel before entering the breath room. The appellant then made a clear refusal. He said that he might have provided breath samples if the breath test had been offered earlier. He testified that he was concerned with the accuracy of the test due to the delay.
[11] With respect to his conviction for impaired driving the appellant makes two submissions. First, he submits the trial judge applied the wrong test. He combines this with a submission that the trial judge’s reasons are deficient. Second, he submits that the evidence was insufficient to demonstrate that the correct test was met. I am unable to accept these submissions.
[12] As to the first point, at page 5 of his reasons the trial judge quoted para. 14 of R. v. Stellato, 1993 3375 (ON CA), [1993] O.J. No. 18 (C.A.). Stellato remains the leading authority on the issue of impairment and para. 14 sets out the applicable test. The appellant contends, however, that in the immediately following paragraphs, where the trial judge said he found the evidence of impairment to be overwhelming, the trial judge erred because he failed to expressly state that such finding was made in relation to the appellant’s ability to operate a motor vehicle or to articulate how the evidence of impairment was related to the appellant’s ability to do so.
[13] In my view this submission is untenable. The trial judge knew he was conducting a trial on an information alleging that it was the appellant’s ability to drive that was impaired by alcohol. Immediately before making his finding that the evidence of impairment was overwhelming the trial judge quoted para. 14 of Stellato. That paragraph addresses not only the degree of impairment required for a conviction but also emphasizes that it is impairment of the ability to operate a motor vehicle which must be established. Therefore, the trial judge obviously had both in mind when he went on to state that the evidence of impairment was overwhelming.
[14] As to the adequacy of the reasons for judgment, I reject the submission that the trial judge was obligated to explain how the evidence of impairment was related to the appellant’s ability to drive when that was obvious from the record. The adequacy of reasons for judgment is to be determined on the basis of a functional test applied in the context of the case and the record before the trial judge: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37.
[15] The evidence of the various police officers, which the trial judge accepted, was that the appellant smelled of the consumption of alcohol, had slurred speech, was unsteady on his feet and had to support himself by leaning on his car, had red watery eyes and had to be assisted while walking back to the police car so that he would not fall. At the police station he was unsteady on his feet and bumped into a door jamb. He had also failed to respond to the police emergency lights and sirens. On the record before the court it is plain and obvious how this level of impairment by alcohol is related to the appellant’s ability to operate a motor vehicle. The trial judge’s reasons are not deficient because they fail to state the obvious. The appellant can discern why he was convicted and the reasons are adequate for appellate review.
[16] The appellant’s second submission is that the evidence was insufficient to support a finding of impairment. This submission amounts to a submission that the verdict is unreasonable. Given the evidence of impairment I have just referred to, this submission cannot succeed. There was evidence from the police witnesses, which the trial judge accepted, which was reasonably capable of supporting the factual findings the trial judge made. The resulting verdict is consistent with those factual conclusions. The appellant has not demonstrated that the verdict is unreasonable. See R. v. Biniaris, 2000 SCC 15, at paras. 37, 42.
[17] In making these submissions counsel for the appellant has emphasized that the police did not conduct sobriety tests, that the distance the police followed the appellant was short, that they observed no aberrant driving, and that there were other explanations for the indicia of impairment than the consumption of alcohol. All of that was before the trial judge who made findings of credibility and of fact and reached a verdict that was open to him on the evidence.
[18] In many respects the appellant is asking this court to retry the case. That is not the role of an appellate court. No palpable or overriding error has been shown in relation to any factual finding made by the trial judge. The second submission in relation to the impaired driving conviction also fails.
[19] The appeal from the conviction for impaired driving is dismissed.
[20] I turn now to the appeal in relation to the conviction for refusing to provide a breath sample. I have come to the conclusion that the conviction must be set aside and a new trial ordered because the trial judge completely failed to address the main argument advanced in defence of that charge at trial.
[21] As previously mentioned the appellant was given a breath demand pursuant to s. 254(3) of the Criminal Code at 2:05 a.m. He arrived at the police station at 2:25 a.m. He refused to provide a sample at 3:17 a.m.
[22] In submissions at the end of the trial the appellant argued that the demand was invalid because the appellant was not provided with the opportunity to take the Intoxilizer test as soon as practicable. At no point in his reasons for judgment does the trial judge address this argument. The argument is not one I have encountered before and neither counsel for the appellant or the respondent could provide me with a case which is directly on point. Given these circumstances I will elaborate on the argument.
[23] Counsel for the appellant rests his submission on the fact that s. 254(3) of the Criminal Code uses the words “as soon as practicable” twice. The section provides that when a peace officer has reasonable grounds to do so he or she “may, by demand made as soon as practicable, require the person (a) to provide as soon as practicable” samples of breath suitable for analysis. Counsel for the appellant submits that although the original demand to the appellant may have been made as soon as practicable at the roadside, that demand had expired or become ineffective by the time of the refusal because the police did not comply with the requirement embodied in the second “as soon as practicable” reference in s. 254(3), by ensuring that the breath testing procedure was itself conducted as soon as practicable. It must be remembered that this is a refusal case. As there are no breath samples the “as soon as practicable” issue does not arise in the context of the presumptions of identity or accuracy.
[24] Counsel for the appellant supports his argument by analogy to cases such as R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, which hold that a demand for a sample of breath for a roadside screening test will become ineffective after the expiry of the “forthwith” period provided for in s. 254(2) of the Criminal Code.
[25] I express no opinion as to the merits of this argument. However, having reviewed a transcript of the submissions made at trial I am satisfied that it was made, although perhaps without great clarity, to the trial judge. This argument was completely overlooked by the trial judge in his reasons. The trial judge did correctly state that it is not a reasonable excuse that the appellant, as he testified, did not believe the breath test would be accurate due to the delay. However, he made no reference at all to the argument that at the time of the refusal the demand was no longer effective and that the appellant could not, therefore, be convicted of refusing to provide a sample.
[26] If the respondent could demonstrate to me that the argument advanced by the appellant has been conclusively rejected by appellate authority binding on the trial judge this omission might not amount to reversible error. However, I have not been referred to any such authority. In addition, I have found an annotation to an unreported case that seems to support the argument, although I have not been able to obtain the actual judgement: R. v. Brandt (1997), 36 W.C.B. (2d) 422 (Alta. Q.B.). Consequently, it appears to me that this was a potential defence which the trial judge was obligated to deal with in the course of his reasons and that his failure to do so constitutes reversible error: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903.
[27] I have considered whether I am in a position to resolve this matter on the appeal. I conclude that I am not in a position to do so. As previously mentioned some evidence was led at trial concerning reasons for the delay. I am in no position to evaluate that evidence and make findings of fact. Those matters should have been addressed by the trial judge.
[28] The appeal from conviction on the charge of refusing to provide a breath sample is allowed. That conviction is set aside and a new trial is ordered before a different judge of the Ontario Court of Justice.
[29] The accused is ordered to appear on Wednesday, April 6, 2016 in courtroom 9 at 9:00 a.m. at 491 Steeles Avenue East, Milton, Ontario to set a date for trial or otherwise deal with the matter.
F. Dawson J.
Released: March 10, 2016
CITATION: R. v. Maitland, 2016 ONSC 1737
COURT FILE NO.: 66/15
DATE: 20160310
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
GERALD MAITLAND
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: March 10, 2016