Court File and Parties

COURT FILE NO.: 13-1163 DATE: 30/05/2016 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – KRISS STEWART Accused/Appellant

COUNSEL: N. Castonguay, for the Crown M. Day, for the Accused/Appellant

HEARD: May 20, 2016

BEFORE: Kane J.

CASE TYPE: summary conviction appeal

Criminal Charges

[1] Kriss Stewart was charged that on or about September 5, 2013, in the Township of Russell;

a. While his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to s. 253(1)(a) of the Criminal Code of Canada; and

b. at the same location, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml. of blood, did operate a motor vehicle contrary to s. 253(1)(b) of the Criminal Code of Canada.

Trial Result

[2] His Honour Judge Jean Legault (“the trial judge”) of the Ontario Court of Justice in L’Orignal, Ontario, on June 3, 2015:

a. Found Mr. Stewart not guilty of count two as to having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml. of blood, did operate a motor vehicle contrary to s. 253(1)(b) of the Code; and

b. found Mr. Stewart guilty of count one, namely while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to s. 253(1)(a) of the Code.

Grounds of Appeal Argued

[3] Mr. Stewart appeals his conviction of S. 253(1)(a) and submits that the learned trial judge erred:

a. Both in fact and in law by refusing to find that the appellant’s right to a trial within a reasonable time under subsection 11(b) of the Charter of Rights and Freedoms had been violated and by refusing to grant the appellant’s Application for a Stay of Proceedings (the “Stay Application”) pursuant to subsection 24(1) of that Charter; and

b. by misapprehending evidence that raised a reasonable doubt about the cause and nature of the appellant’s apparent “indicia of impairment.”

Charter Subsection 11(b)

[4] In his 37 page decision, the trial judge dismissed Mr. Stewarts’ request that the charges be dismissed for breach of his Charter right to a trial within a reasonable time and determine that his s. 11(b) rights had not been breached.

[5] In coming to that decision, the trial judge considered the inherent time requirements of the case, the actions of the accused, the actions of the Crown, the limits on institutional resources and other reasons for the delay including the law in relation thereto. In so doing the trial judge determined that:

a. This issue as to these charges and the facts were not complex and involved a relatively simple matter that the court and counsel deal with on a regular basis and which required little time as to trial preparation;

b. there was nothing in the conduct of the Crown and the officers of the state that occasioned the delay in this matter;

c. there was evidence called to substantiate additional prejudice in addition to that resulting from the fact of being charged and the consequences flowing from that.

[6] The trial judge held that:

a. Three to four months of input period in that jurisdiction since 2002 has been the acceptable period of input, within which a case of this nature generally should be ready to set down for trial;

b. pursuant to directives of that court, a date for trial should be set within six weeks of the first appearance and the wait time for a judicial pre-trial is two to two and half months;

c. the input period between October 1, 2013 to January 22, 2014 was reasonable and inherent to the nature of the case and neutral;

d. the period from February 27, 2014 when counsel was available and November 13, 2014 the first date of trial, being 8 months and 17 days, was institutional delay necessary to accommodate a trial of that length;

e. he was not provided with other dates that may have been offered by the trial coordinator and were refused by both Crown or defence counsel;

f. the period of 8 months and 17 days between the availability of counsel and the first trial date is well within the period of institutional delay guideline suggested in R. v. Morin;

g. the originally scheduled Ottawa trail judge was available to proceed November 13 but not on November 14, the second scheduled date to complete this 1.5 day trial;

h. defence and Crown counsel on November 13 advised the court that it was preferable to only commence the trial on November 14 before the local trial judge as it would likely be faster to obtain an additional ¼ day continuance date from that local judge to complete the trial rather than commencing the trial on November 13 and obtaining the ¼ day continuation date from an out of town judge.

[7] The defence had the obligation to lead evidence as to the earliest available dates from the court for a 1.5 day trial, failed to do so and notwithstanding that failure, received the benefit of doubt by the trial judge who allotted the full 8 months and 17 days as institutional delay.

[8] The trial proceeded on November 14. Defence counsel at the end of that day advised the court it anticipated that the remaining evidence and argument would take ½ a day. December 22, 2014 was offered. Defence counsel was unavailable which the trial judge in his ruling accepted without responsibility to the defence. January 5 was scheduled to complete the remaining ½ day.

[9] The trial resumed January 5 at 15:18 hours. Mr. Stewart testified on the Charter application until 16:06 hours. Defence counsel then sought an adjournment as he was contemplating whether to call a police officer who had testified earlier in the trial, was not committing to do so and had made no prior arrangements or asked the Crown to have the officer present that day. Crown counsel objected in that if she had been advised by defence counsel of his wish to examine that officer, arrangements could have been made to have him present then on January 5.

[10] What defence counsel was contemplating on January 5, 2015 was whether to recall one of the two officers to address a possible contradiction between the testimonies of the two officers, both of whom testified on November 14, 2014. There was no justification beyond seeking an adjournment for delay to have waited 50 days, said nothing to the Crown in the interim and to then advise the court that defence counsel was still contemplating whether to call one officer and needed an adjournment to consider whether to proceed in that manner. Hopefully Mr. Stewart was not charged additional legal fees associated with an adjournment for this reason.

[11] The officer subsequently was cross-examined on April 7, which consumes 5 pages of the trial transcript and should have been conducted and completed on January 5 as the trial judge determined.

[12] For the two additional hours counsel then advised was required to complete the trial, the court offered February 8, 9 and 10, March 5 and 30 and April 7, 10, 16 and 30, 2015. Defence counsel’s earliest availability was April 7, 2014 which was therefore scheduled. Defence counsel was unavailable to accept the five prior dates offered during the two preceding months.

[13] In his decision dismissing the s. 11(b) stay application, the trial judge held that:

a. The institutional delay from when counsel was ready for trial on February 27, 2014 to January 5, 2015 being the trial continuation date, was 10 months and 9 days;

b. the trial would not have been completed on January 5 independent of the afternoon commencement thereof as defence counsel sought an adjournment to consider and make a decision whether to call the police officer notwithstanding the defence had had 1 ½ months since November 14, 2014 to make that decision;

c. the officer testified again, the s. 11(b) Charter application was argued and submissions by counsel were completed on April 7 within the time scheduled;

d. the time after January 5 to April 7, 2015 was the responsibility of the defence.

e. the court added that perhaps there might be two weeks of institutional delay if submissions could not have been completed on January 5.

[14] The trail judge determined the defence had established additional prejudice in the form of increased legal costs of $5,350 and two additional days off work.

[15] The trial judge determined that the total institutional delay to January 5, 2015 was 10 months and 9 days, plus 29 days delay to re-schedule the date to deliver his decision which therefore totalled 11 months and 8 days.

[16] The trial judge held that based on the prejudice to the defendant, the reasons for the delay including the poor scheduling practices of that court, the societal interests and the circumstances that brought the institutional delay beyond the 10 month guideline in R. v. Morin, the one additional month of delay was not unreasonable and therefore dismissed the s. 11(b) application to dismiss the charges for delay.

[17] The defence in this appeal alleges that the trial judge erred in failing to add the “perhaps there might be 2 weeks of institutional delay if submissions could not have been completed on January 5”; namely another 14 days for a total of 11 months and 22 days institutional delay rather than the judge’s calculation of 11 months and 8 days.

[18] Defence counsel in argument treats the Supreme Court upper guideline of 10 months as a ceiling which can only be exceeded for extraordinary and justifiable reasons. I disagree with counsel’s interpretation of the word “guideline”, which is what it is.

[19] The defence argument that the trial judge erred in failing to add another 14 days to the total institutional delay thereby warranting this appeal be granted, is legally and factually incorrect on the evidence.

[20] That argument converts the trial judge’s consideration that “perhaps” a further two weeks should be added to institutional delay, into a ruling of such which did not occur as the judge after considering the point elects not to increase institutional delay by that amount.

[21] Defence’s argument ignores the role of defence counsel in:

a. Failing to lead evidence as to the earliest trial date available from the trial coordinator,

b. in seeking and obtaining an adjournment of November 13, 2014 to commence the trial before another judge the following day,

c. in seeking an adjournment just after 16:00 hours on November 14,

d. doing so again on January 5, 2015,

e. being unavailable for multiple dates offered over 2 plus months for a two hour resumption to complete a 1.5 day trial;

of what the judge determined was a simple matter.

[22] The reasons of the trial judge are clear that the piecemeal manner in which this short trial progressed which included inefficient scheduling by the court and the multiple adjournments obtained by the defence did not in total materially exceed the guideline level indicated in R. v. Morin.

S. 686 Grounds For Granting And Denying An Appeal

[23] Section 686(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, establishes three grounds permitting the court to overturn a conviction, namely:

a. The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

b. the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

c. on any ground there was a miscarriage of justice.

[24] The appellate court may dismiss the appeal where:

a. The court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment,

b. the appeal is not decided in favour of the appellant on any ground mentioned in s. 686(1)(a),

c. notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph 686(1)(a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or

d. notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby.

Scope of Review on Appeal and Deference

[25] The Supreme Court in R. V. Burns, [1994] S.C.J. No. 30, para.134, R. V. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, para. 24, R. V. S. (P.L.) [P.L.S.], [1991] S.C.J. No. 37, para 7 and 8 and R. V. Francois, [1994] S.C.J. No. 66 para. 16 articulate the task and level of review by the court of review to be:

a. Whether the judge could reasonably have reached the conclusion he or she did on the evidence,

b. the court on appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion,

c. witness credibility must be left to the trial judge. Unless the record reveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, a court of appeal should not intervene in that determination.

d. triers of fact have considerable leeway in their appreciation of the evidence, the proper inferences to be drawn therefrom and their assessment of whether the Crown’s case is made out beyond a reasonable doubt. Reasonable differences of opinion on factual issues are not reversible on appeal. All factual findings made by the trier of fact are owed deference, except unreasonable ones embodied in a legally binding conviction. Reasonable people may disagree about their appreciation of the facts. A conviction however is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.

e. provided this threshold test of whether the evidence is capable of supporting the trier’s conclusion, the reviewing court may not substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial,

f. if the appellant court disagrees with the verdict, it may not set aside that verdict if, on the evidence, there is a reasonable basis for the verdict and legal rules have been observed in the trial.

g. the appellant court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge who has all the advantages so often conceded to belong to the trier of fact. The exception to this rule is when the evidence is so overwhelming that a trier of fact would inevitably convict.

h. if the appellant court finds an error of law, with the result that during the legal rules have not been observed during the trial, the accused is then entitled to an acquittal or a new trial.

Level of Deference to Trial Judge

[26] The Ontario Court of Appeal in R. V. Najm 211 O.A.C. 280 stated that a summary conviction appeal judge is not entitled to retry the case in the absence of error on the part of the trial judge. The question on appeal is, did the trial judge apply the correct test and take the proper factors into account.

[27] That court also held that a trial judge’s determination whether to exclude or allow in evidence under s. 24(2) of the Charter is entitled to deference, if that judge considered all the relevant factors.

[28] Based on the above law and this court’s above consideration of the evidence, the trial judge as to this first ground of appeal:

a. Made no error of law in calculating the length of institutional delay;

b. made no error in considering the relevant factors to be considered on a Charter s. 11(b) application,

c. made no error and was not unreasonable as to his appreciation and interpretation of the evidence to this issue, and

d. gave adequate reasons to demonstrate the basis for rejecting this Charter application.

[29] The evidence fully supported the dismissal of the Charter s. 11(b) application. Clear and adequate reasons were given for the dismissal of this Charter application.

[30] This ground of appeal is dismissed.

Second Ground of Appeal – Misapprehension of Evidence Raising a Reasonable Doubt

[31] The appellant submits that the trial judge erred as to the evidence about indicia of impairment and erred in finding Mr. Stewart was impaired by alcohol under s. 253(1)(a) of the Code on the basis of indicia of impairment that had an alternative innocent explanation.

[32] The defendant acknowledges that if evidence of impairment establishes any degree of impairment ranging from slight to great, the offense has been proven beyond a reasonable to: R. v. Stellato (1993), 78 C.C.C. (3d) 380 at paragraph 14 (Ont. CA.), affirmed in , [1994] 2 S.C.R. 478 (SCC).

[33] The appellant alleges that the trial judge misapprehended material evidence about each of the four indicia of impairment including:

a. Unexplained accident;

b. failed to consider the injuries suffered by Mr. Stewart and the fact that he was not wearing his glasses in consideration of the evidence of witnesses who testified that the appellant was unsteady, unstable or weaving;

c. failed to consider the injuries to the mouth of Mr. Stewart as to the evidence by witnesses of his slurred speech;

d. placing undue emphasis as to impairment from alcohol versus consumption of alcohol, on the evidence of witnesses who smelled alcohol on his breath.

[34] As to this ground of appeal, the appellant relies upon ss. 686(1)(a)(i) requiring that a verdict be set aside if it is unreasonable and is not supported by the evidence in this case.

[35] The court agrees with the appellant that the occurrence of this motor vehicle driving into the side of a bridge on a rural road at night is not evidence of impairment from alcohol: R. v. Trecartin, 2006 NBPC 26, 302 N.B.R. (2d) 107 at para.18.

[36] The trial judge in his decision states that he had significant evidence of impairment by alcohol of Mr. Stuart’s ability to operate a motor vehicle.

[37] The evidence that the trial judge accepted of Mr. Stewart operating a motor vehicle while his ability to do so was impaired by alcohol was based upon the testimony of four witnesses.

[38] Mr. Rainville testified that while driving that evening, he came along the same rural road leading to the bridge Stewart’s automobile struck, noticed Mr. Stuart’s automobile struck one side of the bridge, exited his vehicle and approached Mr. Stuart’s vehicle.

[39] Mr. Rainville testified that when he approached Mr. Stuart’s vehicle, the appellant was alone, was seated behind the wheel of his automobile, the engine and windshield wipers of which were still operating.

[40] The trial judge accepted the evidence of Mr. Rainville that he smelled alcohol on the breath of the appellant. This witness testified that Stewart was intoxicated, not walking straight and was stumbling to the point he grabbed onto the appellant and Mr. Rainville grabbed the witness so he would not fall down.

[41] Mr. Rainville testified that the appellant got out from behind the wheel as the witness approached and was bleeding from his nose area. In response to the witness’ question whether he was alright and whether he should call an ambulance, he testified that the appellant responded he was okay and as to an ambulance, stated “No, it’s good, don’t call anyone”, “I’ll call up some buddies to clean up my mess”.

[42] Mr. Lynch testified upon arriving at the scene of the accident:

a. The appellant was outside the vehicle and appeared to be texting with his phone.

b. the appellant appeared to be unstable on his feet.

c. he asked the appellant if he was okay and whether Mr. Lynch should call for the police.

d. that Mr. Stewart replied; “No, don’t call anybody, please” and told Mr. Lynch; “you got to get me out of here.”

e. the appellant was unsteady on his feet, his speech was slurred.

f. Mr. Lynch assumed Mr. Stewart had been drinking.

[43] Constable Monpetit testified that:

a. Mr. Stewart was weaving from side to side and back and forth as he spoke to him at the scene of the accident.

b. he testified the face of the appellant was bleeding.

c. he testified the appellant was alone and that there was a strong odour of alcohol on the appellant’s breath.

d. in response to the officer’s question, the appellant stated he was okay.

e. the road surface was dry, not icy and it was not raining.

f. the appellant was examined by paramedics who arrived but signed a medical waiver that he did not wish to go to the hospital for medical attention.

[44] Constable Barbe testified that Mr. Stewart was unsteady and swaying, made a sidestep to the right to try and keep his balance, almost walked into the door frame on two occasions going into the interview room at the police station and in fact walked into the door frame on a third occasion.

[45] In his decision, the trial judge noted that there were no inconsistencies between the testimony of the above four witnesses as to Mr. Stewart being impaired by alcohol shortly after his motor vehicle struck the side of the bridge and during the following events which might otherwise lead the court to doubt the credibility of such testimony.

[46] The trial judge determined that the appellant had not on the balance of probabilities rebutted the presumption of care and control in s. 258.1(a) relying upon that section and R. v. Garfield, 2014 ONSC 5327, R. v. Brzozowskir [2013] O.J No. 2483 (S.C.J.) R. v. Tharumakulasingam, 2014 ONCJ 362 and R. v. MacKenzie (2013), 50 M.V.R. (6th) 1 (Alta. Q.B.).

[47] The trial judge stated that he was mindful witnesses noted Mr. Stewart had injuries to his face. The evidence as to that indicated that the appellant told Mr. Rainville and Mr. Lynch that he was okay and refused the offer that he be taken to the hospital for medical treatment in relation to the impact of the accident or the injuries to his face.

[48] The evidence that the appellant in response to the questions of several witnesses stated that he did not consider that he was in need of any further medical treatment does not support the defence’s theory that his slurred speech and staggered walking during a period of some 30 to 90 minutes after the apparent time of the accident and the injury to the appellant’s face were unassociated with the odour of alcohol on his breath.

[49] The trial judge in his decision notes the possibility of causation independent of alcohol in referring to the injuries to the appellant’s face. Having considered that possibility, the trial judge concludes that he was satisfied beyond a reasonable doubt that Mr. Stewart’s ability to operate a motor vehicle was impaired by alcohol at a time when the appellant had the care and control thereof. The trial judge then found the appellant guilty of this charge at the end of this 37 page decision.

[50] The argument that the trial judge failed to consider causation as to the slurred speech and unstable walk of the appellant independent of alcohol consumption is incorrect.

[51] The trial judge in his reasons could have more fully detailed his reasons for rejection of those traits independent of the consumption of alcohol. However he was very clear in his analysis as to the limited degree of impairment by alcohol required in law and his conclusion that there was “significant evidence of impairment by alcohol” in this case from four witnesses. The trial judge considered and rejected the alternative causation as to speech and gait.

[52] The facts in this trial were and are not comparable to those before the court in R. v. Tavone, [2007] O.J No 3073, paras 9 and 11-12 (SCJ).

[53] The trial judge’s determination that the appellant was guilty of this charge is fully supported by the evidence and is not an unreasonable decision.

Adequacy of Reasons

[54] The Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 dealt with the sufficiency of reasons of the trial judge. The Supreme Court summarized the case law on this point as follows:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, at para. 28).

(2) The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary. The “path” taken by the judge must be clear from the reasons read in the context of the trial. But it is not necessary that the judge describe every landmark along the way. In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. I, reasons are particularly important when “a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue”, a “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself: Sheppard, at para. 26. (Hill V. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, 2007 SCC 41)

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the “live” issues as they emerged during the trial.

The Role of Appellate Courts in Assessing the Sufficiency of Reasons

[55] To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law. (R. v. R.E.M. para 57)

[56] Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith, [1990] 1 S.C.R. 991, affirming (1989), 1989 ABCA 187, 95 A.R. 304, and Macdonald v. The Queen, [1977] 2 S.C.R. 665. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. See R. v. Burns, [1994] S.C.J. No. 30 para. 17 and 18.

[57] I find no error of law in the reasoning or conclusion as to the appellant’s conviction of this charge.

[58] This appeal is accordingly dismissed.

Mr. Justice P. Kane

Released: May 30, 2016