Her Majesty the Queen v. Martin, 2016 ONSC 3803
CITATION: Her Majesty the Queen v. Martin, 2016 ONSC 3803
COURT FILE NO.: (Perth) 13-1027
DATE: June 8, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Brian Martin
Appellant
C. Maura Romeo, for the Respondent
Lawrence Greenspon, for the Appellant
On appeal from the decision of RSJ H. L. Fraser, Ontario Court of Justice,
On Thursday, November 13, 2014, at Brockville, Ontario.
RULING ON MOTION
quigley, J (Orally)
[1] The appellant appeals a decision of RSJ Fraser, Ontario Court of Justice, dated November 13, 2014. Fraser RSJ found that the Crown had proven that the appellant was operating a motor vehicle and found him guilty of all charges.
Background
[2] On June 20, 2013, the appellant was charged with one count of operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to Section 253(1)(a) of the Criminal Code, operating a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 ml of blood, contrary to Section 253(1)(b) of the Criminal Code, and three counts of breach of probation, contrary to Section 733.1 of the Criminal Code.
[3] The elements of all of the offences were admitted save and except whether the appellant was the driver of the motor vehicle in question at the relevant time.
[4] Four witnesses testified at the trial which proceeded before Fraser RSJ on March 13, 2014 and November 4, 2014. The four witnesses included PC Robert Sinclair and PC Barry Kelly of the Ontario Provincial Police. The appellant and Christopher Bailey testified for the defence.
[5] Mr. Bailey testified that he, and not the appellant, was operating the motor vehicle at the date and time as specified.
[6] Police responded to a 911 call from Christopher Bailey in the late evening of June 20, 2013 concerning a possible domestic dispute. Constables Sinclair and Kelly were dispatched to 4340 Kilkenny Road in Elizabethtown-Kitley Township. Police arrived at the aforementioned residence in an unmarked OPP cruiser at 10:44 p.m.
[7] When the police arrived, they found the residence in darkness, having knocked on the door with no response. Not long thereafter, they observed a pickup truck starting to pull up the driveway towards the residence. Police testified that they waved their flashlights at the truck and the truck’s high beams were turned on and off several times. They testified that the truck then accelerated very quickly as the police officers moved towards it. The truck travelled a short distance before coming to a stop and the two occupants got out of the vehicle and began to move towards the police officers.
[8] After speaking with Mr. Martin and Mr. Bailey, both police officers came to the conclusion that both Mr. Martin and Mr. Bailey were intoxicated by alcohol. PC Sinclair then arrested Mr. Martin for impaired driving. The defence conceded at trial that Brian Martin’s ability to operate a motor vehicle would have been impaired by the consumption of alcohol, and his blood alcohol concentration would have exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[9] The defence position at trial was that it was Mr. Bailey operating the truck and not Mr. Martin and that the police mistakenly believed that they saw Mr. Martin exit the truck on the driver’s side. The defence relied on the darkness of the rural landscape and a number of obstructions that would have impeded the police officers’ observations.
[10] At trial, the Crown submitted that the police officers had ample opportunity with sufficient illumination to see who was driving the vehicle.
[11] The trial judge accepted that this was a R. v. W.(D.) case, where he states as follows in his Reasons for Judgment:
I will just begin by referring to the oft-cited decision of R. v. W.(D.) [1991] 1. S.C.R. 742, 1991 93 (SCC), 63 C.C.C. (3d) 397, in which the Supreme Court of Canada held that if a trial judge believes the evidence of the accused – obviously any case involving credibility as this one – then, obviously, he must acquit. If the trial judge does not believe the testimony of the accused but is left in reasonable doubt by it, he must also acquit. Thirdly, even if the trial judge is not left in doubt by the evidence of the accused, he must ask himself whether on the basis of the evidence which he does accept, he is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[12] The trial judge found that Mr. Bailey’s evidence contradicted Mr. Martin’s evidence on a key point and that Mr. Martin’s testimony about needing to protect his family from possible intruders was not believable in the light of Mr. Bailey’s testimony that they knew the two men were police officers before they exited the truck.
[13] The trial judge also rejected photographs taken by the defence on the morning the defence was to testify ostensibly to portray that the vantage point the police officers were using to identify defence witnesses was implausible.
[14] The trial judge was mildly critical of the fact that these photographs in support of this defence position had not been tendered to Crown witnesses.
Appellant’s Position
[15] The appellant’s position can be summed up in the following manner:
that the trial judge’s reasoning was incomplete and that although the learned justice had found that the evidence of the police officers was credible but he failed to describe in detail the reliability of such evidence;
that by rejecting the evidence of Mr. Bailey and Mr. Martin, that he had failed to properly take into account the third arm of the R. v. W.(D.) analysis.
[16] The appellant submitted that although the learned judge had accepted some of Mr. Bailey’s evidence, his analysis failed to satisfy the requirements of the third leg of the R. v. W.(D.) analysis.
Position of the Crown
[17] The Crown submits that the learned trial judge made no error even though the word, “reliability” was not used in his decision. The Crown refers to Tab 12 of the Appeal Book which contains a picture of Mr. Martin wearing shorts, which was consistent with the police officers’ evidence at trial stating that the person who exited the driver’s side of the truck was wearing shorts, who they later identified as Mr. Martin, and the person exiting the passenger side as Mr. Bailey, who was wearing jeans.
[18] The Crown also stated that the flashlights of the police officers were directed at the truck and that PC Sinclair testified, in speaking about Mr. Bailey, “We blatantly saw him get out of the passenger side of the truck.”
[19] The Crown submits that the trial judge’s extensive review of the evidence made it not only credible but reliable and satisfied all of the requirements of the W.(D.) analysis.
The Law
[20] In R. v. G.E.H. [2012] N.S.J. No. 339, Oland J writing for the court states as follows at paragraphs 15, 24, 25 and 30:
The appellant submits that the judge erred in his assessment of credibility and reliability. The unique position that a trial judge enjoys in being able to see and hear the witnesses has been emphasized many times: see R. v. Gagnon, 2006 SCC 17 at para. 11; R. v. R.E.M., 2008 SCC 51 at para. 68. Findings of credibility are entitled to deference and intervention on appeal is rare: see R. v. Dinardo, 2008 SCC 24 at para. 26. Appellate courts have been cautioned against substituting their decisions on credibility. They should not parse, dissect or microscopically examine a trial judge’s reasons for judgment: R. v. C.L.Y., 2008 SCC 2 at para. 11. Rather, the decision should be read as a whole.
The challenges faced by a judge of assessing the credibility of witnesses were described by the majority of the Supreme Court of Canada in Gagnon at para. 20 thus:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.
- In R.E.M., McLachlin, C.J. writing for the court observed at para. 49:
While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.
- In allowing the appeal and restoring the verdicts of guilty in R.E.M., McLachlin, C.J. writing for the court stated:
[66] Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.
Analysis and Decision
[21] I find no merit in the Appellant’s allegation that the trial judge committed error in his findings and analysis in this case.
[22] The trial judge’s decision is supportable not only at the evidence presented at trial, but his detailed analysis of why he accepted evidence of the Crown and rejected the evidence of the defence. In particular, his findings as to the apparel of the Appellant and his witness, Mr. Bailey, leave no doubt as to who was the driver of the vehicle.
[23] Therefore, the appeal is dismissed.
The Honourable Mr. Justice M. J. Quigley
Released: June 8, 2016
2016 ONSC 3803
COURT FILE NO.: (Perth) 13-1027
DATE: June 8, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
– and –
Brian Martin
Appellant
RULING ON MOTION
Quigley, J.
Released: June 8, 2016