COURT FILE NO.: 13-782 DATE: 20160504

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

Sean Bradley, for the Respondent

• and -

MOHAMMED KARIMULLAH Appellant

Stephen Price, for the Appellant

HEARD: April 20, 2016, in Milton

REASONS FOR JUDGMENT

[On appeal from the judgment of Alan D. Cooper, J. dated April 21, 2015]

F. Dawson J.

[1] Mohammed Karimullah appeals from his conviction for impaired driving. He was convicted on April 21, 2015 by Justice Alan Cooper following a trial that proceeded in instalments on parts of five days over a period of almost one and a half years. The date of the offence was March 4, 2013. A charge of “over 80” was withdrawn by the Crown part way through the trial.

Overview of the Evidence

[2] On March 4, 2013 a civilian witness, Stephen O’Farrell, called the police to report that the driver in front of him was driving erratically and may be impaired. That driver was the appellant. Mr. O’Farrell stayed on the line with the 911 operator to report on the appellant’s driving. He followed the appellant over a considerable distance, from Hurontario Street in Mississauga onto Highway 403 to the Queen Elizabeth Way and from there onto city streets in the Burlington area.

[3] The appellant does not take issue with the trial judge’s description of his driving as “horrendous”. Mr. O’Farrell testified that the appellant hit a snowbank near a guard rail, strayed several feet out of his lane in each direction up to 10 times, went off onto the shoulder and back onto the highway, repeatedly moved from lane to lane for no apparent reason and without signalling, drove at widely varying speeds on the highway, drove markedly slowly (30 kph in a 60 kph zone) upon returning to city streets, and spent excessively long periods of time at stop signs.

[4] The appellant testified that he was not impaired by alcohol. He testified that he had two beers at lunch and shared a bottle of wine equally with two friends during the evening before driving home. He denied that he hit a snowbank as Mr. O’Farrell testified. He blamed his bad highway driving on itchy eyes caused by eating an excessively spicy dish called Channa that had been prepared by his friend’s wife. He said he drove slowly once he got off the highway because there was no need to drive quickly. He also said he became aware he was being followed once he was back on city streets.

[5] As the “over 80” charge did not proceed there is no evidence of the appellant’s blood alcohol level. The appellant was arrested on the basis of a failure of an approved screening device (ASD) test. When the police finally arrived and stopped the appellant he admitted having consumed alcohol.

[6] The officers who dealt with the appellant at the roadside agreed that the arrest depended on the failure of the ASD test. They were not aware of the details of the description of bad driving by Mr. O’Farrell. Mr. O’Farrell was not interviewed by a police officer until later in the evening.

[7] In addition to the appellant’s testimony the defence at trial relied on the testimony of the two friends the appellant had been with that evening. Each testified that the appellant was not impaired and that he had a reputation for honesty.

[8] The defence also called an expert witness, Mr. Gerald Kupferschmidt, and qualified him to give opinion evidence about “the effects of alcohol in the human body”. He ultimately provided the opinion that, based on the evidence presented to him that there was not constant weaving or a constant lack of physical coordination by the appellant, the appellant was probably not impaired by alcohol.

The Trial Judge’s Reasons

[9] The trial judge reviewed the evidence, described the standard and burden of proof, said that he was mindful of the principles set out in R. v. W.(D.), [1971] 1 S.C.R. 742.

[10] He then found that Mr. O’Farrell was an impressive witness and accepted his evidence. He accepted the evidence of the arresting officer, Cst. Elashi, that the appellant stumbled as he was removed from his vehicle. He rejected the appellant’s evidence about why that happened. He also made reference to the appellant’s admission that he had consumed alcohol and to testimony that the appellant had an odour of alcohol on his breath and red eyes. He briefly explained why he rejected the appellant’s testimony and was not prepared to rely on Mr. Kupferschmidt’s evidence. It is clear that, having rejected the appellant’s evidence about the reasons for his bad driving, the evidence of bad driving played a significant role in the trial judge’s decision to find the appellant guilty.

The Grounds of Appeal and Analysis

[11] A lengthy factum was filed which alleged that the trial judge’s reasons were “fraught with errors”. Not everything raised in the written material was pursued when the appeal was argued. The appeal was presented on the basis that there were a number of related errors. I will deal with each in turn.

[12] First, the appellant submits that the trial judge made a number of factual errors. He submits that, at para. 16 of his judgment, the trial judge erred when he said of the appellant’s evidence: “He disagreed with the evidence of Mr. O’Farrell that he was driving badly on Hurontario Street”. The appellant submits Mr. O’Farrell gave no evidence of bad driving on Hurontario Street.

[13] I agree with the Crown’s responding submission that Mr. O’Farrell’s evidence was not entirely clear on that point. Mr. O’Farrell testified that he was driving down Hurontario Street onto the on-ramp to 403 westbound when he saw the appellant veer into a snowbank on the right. The respondent also points out that at para. 16 the trial judge was summarizing the appellant’s evidence. In examination-in-chief the appellant said his route was from Bristol Road, then to Hurontario, then onto the 403.

[14] Against the background of this evidence I am unable to accept the appellant’s submission that the trial judge misapprehended the evidence or made a factual error. Even if he did it is not one which matters. Mr. O’Farrell testified that in the process of moving from Hurontario Street to the 403 the appellant veered into a snowbank. The appellant disagreed. The trial judge was aware of this difference of position, rejected the appellant’s evidence and accepted Mr. O’Farrell’s. Whether this occurred just before the ramp to the 403 or on the ramp is of no significance.

[15] In his factum the appellant submits the trial judge also erred when he said, at para. 12 of his reasons, that the over 80 charge was withdrawn following the appellant’s testimony. The respondent concedes this was an error as the over 80 was withdrawn prior to the appellant’s testimony. This error is of no significance in a case where the issue was whether the evidence established impairment by alcohol. As I mentioned, this case was conducted in instalments over a prolonged period of time. That may account for such an insignificant error.

[16] Of more significance, the appellant submits that the trial judge erred when he said, at para. 30 of his judgment, that Cst. Elashi had to hold the appellant up to prevent him from falling. The appellant submits that there was no evidence that the officer had to hold the appellant up as they walked to the officer’s car. The appellant submits that this is a palpable and overriding error based on a misapprehension of the evidence. The appellant points not only to the evidence of Cst. Elashi about what occurred as he removed the appellant from his van and escorted him to the police car, but also to the evidence of the other police witnesses who dealt with the appellant later, that the appellant exhibited no difficulty with his balance or walking.

[17] Reading the trial judge’s reasons as a whole, I reject this submission. Taken in isolation, what the trial judge said at para. 30, when compared to Cst. Elashi’s evidence on the point, is vulnerable to the appellant’s submission. However, I note that at paras. 10 and 24 of the judgment the trial judge accurately summarized the officer’s evidence in relation to the stumble. At para. 10 the trial judge described how, in being removed from his car, the appellant stumbled “but was stabilized by officer Elashi” (emphasis added). The trial judge also correctly stated that from that point on there were no observations of further problems with the appellant’s physical coordination.

[18] At para. 24 the trial judge again referred to the appellant stumbling on exiting his van and to Cst. Elashi holding him “to stabilize him”.

[19] Against the background of what the trial judge said at paras. 10 and 24 I do not think what he said at para. 30 can fairly be taken to mean something different.

[20] The trial judge, as he was entitled to do, rejected the appellant’s evidence as lacking credibility. He clearly did not accept the appellant’s evidence that when Cst. Elashi removed him from the van the officer pushed him back into the van causing him to stumble. Cst. Elashi’s evidence is capable of supporting the conclusion that, despite the fact that he was holding the appellant’s shoulder as he removed the appellant from his vehicle, the appellant stumbled of his own accord and had to be stabilized by the officer. Fairly read, I do not accept that the trial judge’s reasons reflect any palpable or overriding error. Nor do they support a conclusion that he misapprehended the evidence, by failing to take relevant evidence into account or otherwise. The trial judge acknowledged that no other physical coordination problems were exhibited by the appellant. Therefore, I reject the appellant’s submission that the trial judge ignored the evidence of the other officers on the coordination issue.

[21] The appellant next turned his attention to the trial judge’s failure to accept or act upon the evidence of the expert Mr. Kupferschmidt. He submits that the trial judge should have accepted and acted upon the opinion of Mr. Kupferschmidt that physical impairment by alcohol cannot be turned off and on by someone who has been drinking. The appellant emphasized that the Crown did not call expert evidence in reply. He submits that once the appellant was off the highway there was no further evidence of weaving. The appellant characterizes weaving as the main evidence the Crown pointed to at trial to establish impairment. Mr. Price also submits that if the appellant only “weaved” five to ten times over a considerable distance he must have been driving “straight” much of the time.

[22] The appellant submits that in light of Mr. Kupferschmidt’s uncontradicted evidence the trial judge erred in finding that once the appellant got off the highway, slowed down and felt someone was following him, he essentially willed himself not to weave while driving.

[23] What the appellant’s submissions on this point fail to take into account is that the trial judge was in no way required to accept and act upon the opinion of an expert witness, even if that evidence stood uncontradicted. It was only an opinion and it was an opinion on the ultimate issue the trial judge was required to decide in the case on the basis of the evidence as a whole and not just that of the expert.

[24] In this case, once the trial judge rejected the appellant’s evidence that his bad driving was related to his consumption of spicy foods, there was a considerable amount of evidence to be considered together with Mr. Kupferschmidt’s evidence on the issue of impairment. I note that no challenge was made on the hearing of the appeal to the basis upon which the trial judge rejected the appellant’s evidence.

[25] The evidence to be considered on the issue of impairment together with the expert’s evidence included the following:

(1) the appellant hit a snow bank next to a guard rail; (2) the appellant’s vehicle wandered significantly and repeatedly out of its lane in both directions as it went down the highway; (3) the appellant changed lanes on the highway several times for no apparent reason and without signalling; (4) the appellant drove onto the shoulder of the highway and back onto the roadway near Bronte Road; (5) the appellant drifted into the high occupancy vehicle (HOV) lane; (6) the appellant drove at the unusually low speed of 30 kph in a 60 zone after leaving the highway; (7) the appellant stopped at stop signs for excessive periods of time; (8) the appellant admitted consuming some alcohol; (9) the appellant had an odour of alcohol on his breath and his eyes were red or bloodshot; (10) the appellant had dilated pupils; (11) the appellant appeared to move slowly and deliberately; (12) the appellant appeared nervous at the roadside; and (13) the appellant stumbled when getting out of his vehicle.

[26] On the record before the trial judge it was open to him to conclude that no reasonable doubt was raised by Mr. Kupferschmidt’s opinion that unless particular indicia of impairment persist over time they must be attributed to some cause other than impairment by alcohol. I agree with the respondent’s submission that it was open to the trial judge to conclude, as he did, that the appellant’s realization that he was being followed had a “sobering effect” on the appellant causing him to concentrate more on his driving. I also note that the appellant was driving at only 30 kph at the time when he was able to drive without weaving. The trial judge was entitled to use common sense and human experience when evaluating all of the evidence.

[27] While not mentioned by the trial judge in his reasons, I note that when Mr. Kupferschmidt was cross-examined about this last point he said it all depended on the person’s blood alcohol level. In this case, as already mentioned, there was no evidence of the concentration of alcohol in the appellant’s blood.

[28] The appellant does refer to one point where it appears to me that the trial judge misapprehended Mr. Kupferschmidt’s evidence. However, I conclude that this error did not play an essential part in the reasoning process leading to the appellant’s conviction. As such it does not lead to appellate intervention: R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.).

[29] At para. 31 of his reasons the trial judge said that he did not accept Mr. Kupferschmidt’s evidence “as to the cause of the stumbling” because it was based on what the appellant said was the truth and not on what Cst. Elashi testified to.

[30] When I examine the record I find this statement to be inaccurate. I do not see any place in Mr. Kupferschmidt’s evidence where he is opining on the cause of the stumble based on the appellant’s version of that event. I agree with the appellant’s submission that the only real difference between the evidence of the appellant and the officer was that the appellant claimed he stumbled because the officer pushed him against the van. That aspect of the matter was never put to Mr. Kupferschmidt.

[31] In his factum the appellant submits (at para. 159) that the expert’s opinion was based on all of the evidence regarding balance, “both that of the appellant and Constable Elashi”. The appellant also notes the similarity of most of their evidence on this point. I conclude that the first part of this submission is unfounded for the same reason: the appellant’s version was never put to Mr. Kupferschmidt.

[32] There are two reasons which, in combination, lead me to conclude that this error is not significant enough to warrant appellate intervention. First, by his express words the trial judge limited the impact of his erroneous comment to Mr. Kupferschmidt’s evidence on the cause of the stumbling. As I have said, once the appellant’s evidence was disbelieved there was considerable other evidence of impairment.

[33] Second, the trial judge did not use his erroneous observation to discount Mr. Kupferschmidt’s evidence generally. The trial judge’s reasons reflect that he understood that Mr. Kupferschmidt’s evidence was based more broadly and was to the more general effect that signs of physical impairment would not come and go if they were the result of impairment by the consumption of alcohol.

[34] The thrust of Mr. Kupferschmidt’s opinion evidence was that neither the bad driving nor the stumble were the result of impairment. His opinion rested on the correctness of the factual proposition that bad driving and lack of physical coordination had not been observed consistently over the time period in question. The trial judge’s reasons reflect his understanding of that evidence and his conclusion that in the context of all of the evidence it did not raise a reasonable doubt about whether the appellant’s ability to operate a motor vehicle was impaired by alcohol.

[35] Finally, the appellant submits that the trial judge erred because he failed to address the good character evidence called on behalf of the appellant. That evidence came from Prame Tiwari and Heralall Nandal, who were the two friends the appellant was with during the evening before these events. Each testified about how the three of them equally shared a bottle of wine. Each testified that the appellant did not appear to them to be impaired. Each of them testified that the appellant had a good reputation in the community for honesty.

[36] The appellant submits that the trial judge erred because he failed to properly take into account this good character evidence. The appellant relies on R. v. Dees (1978), 40 C.C.C. (2d) 58 (Ont. C.A.).

[37] I do not accept this submission. The trial judge mentioned when summarizing the defence evidence that Mr. Tiwari had given such evidence. He was, therefore, generally aware of that evidence. He did not do so when summarizing Mr. Nandal’s evidence but a trial judge is not obligated to refer to all of the evidence in the course of his or her reasons.

[38] It was obvious that credibility was a central issue in this case. A judge is presumed to know the law and, therefore, that such evidence is relevant to assessing credibility.

[39] At para. 32 of his reasons the trial judge said that he was not left in a state of reasonable doubt by the appellant’s evidence “or any other evidence heard in this case”. This reference would include the very brief evidence of reputation for honesty given by the two defence witnesses.

[40] I also observe that this was not a case, like Dees, where the character evidence also had direct relevance to the likelihood of the accused having committed the offence.

[41] In addition, an examination of counsel’s closing submissions to the trial judge reveals that no reference was made to the character evidence issue. It is not surprising that the trial judge did not comment in his reasons about arguments that were not made to him.

Conclusion

[42] As I am not persuaded that the trial judge erred as submitted the appeal is dismissed.

F. Dawson J.

Released: May 4, 2016