Court File and Parties

COURT FILE NO.: 277/14 DATE: 20161004

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

LINDSAY BANDINI, for the Respondent/Crown

• and -

SPENCER TAUGHER Appellant

CHARLES SHORTT, for the Appellant

Reasons for Judgment

[On appeal from the judgment of the Honourable L.M. Baldwin, dated November 3, 2015]

DURNO, J.

1On January 8, 2015, the appellant was driving in Halton Region on what the investigating officer described as “a pretty brutal night.” It was minus ten degrees Celsius and the roads were slippery. A civilian testified that there was blowing snow. The officer stopped the appellant as a result of the citizen’s 9-1-1 call about his driving and charged him with impaired operation. Mr. Taugher was convicted based upon evidence of some erratic driving, the smell of alcohol on his breath, somewhat slurred speech and a slower speech pattern than a normal person. The appellant did not testify.

2He appeals contending the trial judge erred in law in applying the test for circumstantial evidence. In particular, he submits Her Honour erred in requiring a reasonable doubt to be based on proven facts. The appellant submits that other explanations were available on the evidence and the trial judge failed to consider them. While the Supreme Court of Canada’s judgment in R. v. Villaroman, 2016 SCC 33, was released after the judgment, the appellant submits that case provides a stronger argument that the trial judge erred. Finally, the appellant contends the verdict was unreasonable. The appellant seeks an acquittal or in the alternative, a new trial.

3For the following reasons, the appeal is dismissed.

The Evidence

4Susan Cassady testified that she was driving a friend home around 7:30 p.m. when she noticed the appellant’s vehicle coming from behind her and passing on her left side. She first noticed a rapid jerk of his car going out of his lane, jerking into the left lane very fast and then rapidly jerking back into the middle lane where he had been driving. Within ten seconds, his vehicle did the same jerking motion twice for a total of three times. The first time it went three feet into the other lane and on the second it was not as far over the line. Having never seen anyone jerk their vehicle in that manner, she concluded the driver was not in control.

5Ms. Cassady, formerly a member of the Armed Services, felt a duty to report what she saw to the police. She decided to follow the driver and call 9-1-1. As she followed the appellant, he weaved over the line a couple of times. At times, he was speeding while at others he was driving at the posted 60 km/h speed limit. His speed varied from 60 to 80 to 85 km/h and back to 60 km/h. He would come up on the rear bumper of car very close and then jerk into the left lane “to pass a guy” without a signal, whip by him, and jerk back into the right lane. His vehicle was never centered in its lane. One vehicle “sort of” swerved to the right because the appellant’s car came too close to it. At no time did the appellant signal lane changes.

6When the traffic got heavier, his driving improved as his speeds no longer varied and he was not weaving within his lane. When asked in cross-examination if he was driving normally at that time, Ms. Cassady said, “I wouldn’t say normal, but better.” It was still not very safe driving. She saw the arresting officer pull the appellant over and waited at the scene to provide a statement.

7Ms. Cassady had no difficulties driving her car that evening despite the cold temperatures, blowing snow and the “crappy” tires on her son’s car that she was driving. She followed the appellant for 10 to 12 minutes before the police pulled him over.

8Ms. Cassady described the appellant’s driving as not like someone drifting out of their lane because they were texting. Nor was it consistent with someone using just one hand to drive. She testified the driving was consistent with someone having a medical issue, someone trying to find something on the floor of the vehicle or someone who was impaired.

9Constable Keeping of the Halton Regional Police said that it was an extremely cold evening. The roads were slippery because of the extreme cold, but they were dry. The wind was howling. He testified that he listened to the 9-1-1 caller’s driving observations from 8:05 p.m. After he came upon the appellant’s vehicle, he followed it for 200 to 300 metres before stopping him. During that time, he observed no problems with the appellant’s driving.

10When speaking to Mr. Taugher, the officer noted that he was speaking with a slower speech pattern than a normal person, using more inflection on some words and slurred some of his words. The speech pattern was consistent with what the officer believed was someone who had consumed alcohol. The officer’s notes indicated the speech was slightly slurred.

11The officer also noticed a strong odour of alcohol coming from the appellant’s breath when he was within an arm’s length of the appellant. When the appellant got out of his vehicle to look for some documents, the officer noted no problems with his walking. Based on the reported driving, the smell of alcohol and speech pattern, the officer arrested the appellant for impaired operation at 8:15 p.m.

The Reasons for Judgment

12After reviewing the evidence, the trial judge continued:

The defence submits that the bad driving in this case can be explained by factors other than impairment. It is submitted that the slippery road conditions and the howling wind should be considered. It is submitted, via defence counsel’s questioning of witnesses, that perhaps the accused was on his cellphone or looking for something in his car. There is no evidence before this court of any of these alternate explanations for the bad driving observed by Ms. Cassady.

13Her Honour found Ms. Cassady was a credible witness despite a very strong cross-examination. Mr. Shortt agreed that she was a very credible witness. The trial judge found the appellant’s driving was out of control and he was in danger of causing an accident. Despite the officer having no notes of which words the appellant slurred, Her Honour accepted that the appellant’s speech was slightly slurred.

14The trial judge cited R v. Stellato (1993), 1993 ONCA 3375, 78 C.C.C. (3d) 380, aff’d 1994 SCC 94, [1994] 2 S.C.R. 478, with regards to any degree of impairment ranging from slight to great establishing the offence and continued:

That is the case before this court. Although the physical indicia of impairment was slight, the driving was erratic and dangerous and there are no other rational explanation other than impairment to account for this driving based on the evidence.

The Grounds of Appeal

Was the verdict unreasonable?

The Positions of Counsel

15While not framing the appeal on this basis, once the Crown suggested that the effect of the appellant’s submission was that the verdict was unreasonable, the appellant submits that in the alternative to his primary grounds related to circumstantial evidence, the verdict was unreasonable. The Crown takes the contrary view. Since a finding the verdict was unreasonable would determine the appeal and end the prosecution, it is best to deal with this issue first.

Analysis

16The Supreme Court of Canada succinctly set out the test for an unreasonable verdict based on circumstantial evidence in Villaroman as follows:

[55] A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence: R. v. Yebes, 1987 SCC 17, [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: [citations omitted]

17The Court also held that

[66] The judge did not ignore hypothetical alternative explanations advanced by the respondent’s counsel. He found that they were speculative, noting that the Crown does not have the burden “of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused”: para. 81 citing Paul at p. 191.

[67] The Court of Appeal, in my respectful view, erred by focusing on hypothetical alternative theories and, at times, engaging in speculation rather than on the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him.

18I am not persuaded the verdict was unreasonable. There was an evidentiary basis upon which the trial judge could convict based upon the appellant’s car jerking out of his lane, coming up on the bumpers of other vehicles and jerking into the other lane, fluctuating his speeds with no readily apparent explanation, the odour of alcohol on the appellant’s breath and his speech being slightly slurred. Accepting for the sake of this analysis the appellant’s submissions with regards to alternative explanations for the driving, that the appellant was driving properly at some points and the absence of physical symptoms of impairment other than slight slurring, that those factors did not raise a reasonable doubt in the trial judge’s mind does not mean the verdict was unreasonable.

19The indicia relied upon by the trial judge provided a sufficient basis upon which to make a finding of guilt. The trial judge was entitled to draw inferences from the evidence and did so. She was not required to reject the officer’s evidence about the appellant’s speech being slightly slurred because his notes contained no description of how he slurred or which words were slurred. The officer testified the appellant’s speech was consistent with that of someone who had consumed alcohol. Whether the use of those inferences and the suggestions raised in cross-examination were appropriate will be addressed under the appellant’s principle grounds of appeal below.

20In addition, in determining whether a verdict is unreasonable, an appellate court is entitled to consider that the appellant did not testify: R. v. Noble, 1997 SCC 388, [1997] 1 S.C.R. 874, at para. 103.

Does the appeal raise a question of law?

The Positions of Counsel

21The appellant submits this ground of appeal raises a question of law alone. Accordingly, the standard of review is correctness.

22The respondent submits that the appellant raises an issue of mixed fact and law because it relates to Her Honour applying the facts she determined to the law regarding circumstantial evidence. Accordingly, the standard of review is reasonableness.

Analysis

23I am persuaded this issue raises a question of law alone. In R. v. Luedecke (2008), 2008 ONCA 716, 93 O.R. (3d) 89, Doherty J.A. wrote:

[48] It can be difficult to distinguish between errors of law alone and errors of mixed fact and law. At times the distinction seems purely semantic: see Canada (Director of Investigation and Research) v. Southam Inc. (1997), 1997 SCC 385, 144 D.L.R. (4th) 1 (S.C.C.), at para. 35. I am, however, satisfied that the Crown’s arguments do raise a question of law alone. In R. v. Morin (1992), 1992 SCC 40, 76 C.C.C. (3d) 193 (S.C.C.), at pp. 198-99, Sopinka J. described a question of law in these terms:

If a trial judge finds all the facts necessary to reach a conclusion in law and in order to reach that conclusion the facts can simply be accepted as found, a court of appeal can disagree with the conclusion reached without trespassing on the fact finding function of the trial judge. The disagreement is with respect to the law and not the facts nor inferences to be drawn from the facts.

[49] Crown counsel does not take issue with any of the facts as found by the trial judge but directs her arguments at the legal effect of those findings of fact. Counsel contends that on those findings, and applying the principles from Stone, the trial judge was obligated as a matter of law to find that the respondent’s condition constituted a disease of the mind. Counsel submits that the classification of the respondent’s condition admitted of only one correct answer and as such is clearly a question of law.

[50] Further support for the Crown’s position is found in R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 460, where the court described a question of law as a question involving either the interpretation of a legal standard or the application of a legal standard. The Crown’s appeal involves the proper interpretation of the legal standard described by the phrase “mental disorder” or its equivalent, “disease of the mind”. Similarly, the Crown’s appeal can be described as a challenge to the application of that legal standard to the evidence as accepted by the trial judge.

24In R. v. Kachkar (2014), 2014 ONCA 560, 121 O.R.(3d) 197 (C.A.) Watt J.A. held:

[30] Questions of law are about what the correct legal test is, while questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions about whether the facts satisfy the legal tests: Southam Inc., at pp. 766-67 S.C.R. A question that is about the application of legal standard is also a question of law: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at para. 18.

25The appeal involves the application of the legal standard for assessing circumstantial evidence. Accordingly, the standard of review is correctness.

Did the trial judge err in law in considering circumstantial evidence?

The Positions of Counsel

26The appellant submits that Her Honour erred in finding that other reasonable inferences had to be found in proven facts. He submits that the inferences suggested in cross-examination by Ms. Cassady provided sufficient evidence that there were alternative reasonable explanations on the record to the appellant’s impairment having caused his bad driving. She testified the driving was consistent with someone in medical distress or someone who was reaching for something on the floor of the vehicle. In addition, the weather conditions could explain the poor driving. Accordingly, the trial judge could not have correctly applied the test for circumstantial evidence.

27The appellant further submits that his not testifying is irrelevant to the issues raised on appeal. He disagrees with the Crown’s assertion that it is an appropriate consideration that there was no innocent explanation provided by the appellant. The appellant relies upon the following from Noble:

78 Such treatment of the silence of the accused does not offend either the right to silence or the presumption of innocence. If silence is simply taken as assuring the trier of fact that it need not speculate about unspoken explanations, then belief in guilt beyond a reasonable doubt is not in part grounded on the silence of the accused, but rather is grounded on the evidence against him or her. The right to silence and its underlying rationale are respected, in that the communication or absence of communication is not used to build the case against the accused. The silence of the accused is not used as inculpatory evidence, which would be contrary to the right to silence, but simply is not used as exculpatory evidence. Moreover, the presumption of innocence is respected, in that it is not incumbent on the accused to defend him or herself or face the possibility of conviction on the basis of his or her silence. Thus, a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict. On the other hand, if there exists in evidence a rational explanation or inference that is capable of raising a reasonable doubt about guilt, silence cannot be used to reject this explanation.

28The respondent contends there were no reasonable alternative explanations in evidence. Ms. Bandini argues that there was no evidence the appellant was in any sort of medical distress nor was it reasonable to infer that throughout the ten to twelve minutes of bad driving the appellant was looking for something he had dropped on the floor of his vehicle. That Ms. Cassady had no trouble driving in the weather conditions removes that as an explanation for the appellant’s poor driving. The Crown submits the trial judge did consider the cross-examination, found the suggestions were speculative and made reasonable and available findings of fact.

Analysis

29The key question in this appeal is whether there were reasonable alternative explanations for the appellant’s driving. If there were, the trial judge erred in convicting. If there were not, the judgment is unassailable, subject to an examination of Villaroman.

Were there reasonable alternative inferences?

30As the Supreme Court of Canada put it in Villaroman, “The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it:” at para. 35.

31Determining whether there are reasonable alternative explanations requires an examination of all of the evidence, not a dissection of the evidence looking at portions in isolation and ignoring the other evidence. When that is done, there were no reasonable alternative explanations.

32I reach that conclusion for the following reasons. First, the key is the alternative explanations must be reasonable, not speculative explanations that do not arise on the evidence. There could be many speculative explanations for the appellant’s jerky driving, going out of his lane, driving up to the bumper of cars ahead of him and fluctuating speeds if each was looked at in isolation without reference to the balance of the evidence. For example, there could have been a hornet in the vehicle. He could have been injured playing hockey and the pain caused him to drive the vehicle in that manner, he might have been in medical distress or was trying to pick something up off the floor of the vehicle. He might just be a terrible driver. There are others.

33Second, Ms. Cassady gave no evidence as to her observations of the appellant, if she made any. Her suggested explanations were based on her having no contact with the appellant. Whether he was ill was speculative. In addition, with regards to a medical explanation, a review of all the evidence shows nothing that would make that explanation reasonable. He was walking normally. There was no evidence of medical complaints when arrested. He exhibited no physical indicia that were consistent with impairment except his speech. There is an irresistible inference that there were no physical indicia consistent with the appellant being in medical distress.

34Third, the jerky driving occurred on more than one occasion. It was open to the trial judge to find that there was no evidentiary basis upon which to conclude that he was searching for or picking up something off the floor. If he continued to try to pick something up off the floor three times in bad weather it could also support a finding of impaired judgment.

35Fourth, the jerking out of his lane was not the only bad driving. Ms. Cassady described him going up to the bumper of other cars and driving at varying speeds. It is difficult to see how those aspects of his driving could be related to picking something up off the floor or that the driver was in medical distress.

36Fifth, Ms. Cassady said she had no problems driving properly that evening nor was there any evidence the officer encountered problems driving. That the appellant’s driving was caused by the weather conditions would not be a reasonable alternative explanation.

37Sixth, Ms. Cassady said that one of the explanations from her observations of the driving was that the driver was impaired.

38The combination of these factors provided a basis upon which Her Honour could find that there were no other reasonable alternatives. What was suggested was based upon speculation, not reasonable alternative explanations.

39It was open to the trial judge to conclude that the only reasonable inference was that the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol. Her Honour did not err in concluding that there was no evidence of any of the alternate explanations for the appellant’s bad driving. That he did not testify could be used as indicted in Noble, that his silence indicated only that there was no explanation from him. There was nothing more than speculation on Ms. Cassady’s part, based on the driving observations alone. On this record they were no reasonable alternative explanations.

40Subject to examining Villaroman, the trial judge did not error in her assessment of the circumstantial evidence.

Did the trial judge err in applying the correct standard considering Villaroman?

The Positions of Counsel

41The appellant submits that Villaroman provides added support for his submission that the trial judge failed to properly assess the circumstantial evidence. The Crown submits there is nothing in Villaroman that would support a finding the trial judge erred.

Analysis

42In Villaroman, the Supreme Court held:

35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver (1965), 1965 ONCA 26, [1965] 2 O.R. 475, at p. 479 (C.A.), aff'd without discussion of this point 1966 SCC 6, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added in original). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citations omitted] I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, 1971 SCC 13, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

43In addressing the differences between reasonable inferences and speculation, the Court agreed with the following statement from the Alberta Court of Appeal in R. v. Dipnarime, 2014 ABCA 328, at paras. 22 and 24-25:

[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;” that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

44Of note the Supreme Court held:

[50] When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that “the accused cannot ask this Court to rely on supposition or conjecture, that flows from a purely hypothetical narrative to conclude that the Crown has not proven he is guilty of the offences with which the Crown has charged him”: para. 47. The judge’s citation of McIver was intended to make the same point, i.e. that a reasonable doubt cannot arise from speculation or conjecture. This is perfectly correct. As the Court said in Lifchus, “a reasonable doubt must not be imaginary or frivolous”; need not be proof to an absolute certainty; and must be based on “reason and common sense”: paras. 31 and 36. The burden on the Crown does not extend to “negativing every conjecture”: R. v. Paul, 1975 SCC 185, [1977] 1 S.C.R. 181, at p. 191.

45While Villaroman provided a most helpful review of the law regarding circumstantial evidence, I am not persuaded that applying the judgment results in the trial judge having failed to properly examine the circumstantial evidence. In particular, the Court was clear that the requirement that other reasonable explanations must be based on proven facts has not been the law since 2009: Khela, at para. 58. That is not new in Villaroman. The Court was also clear that what is required is reasonable alternative explanations, not just possibilities or suggestions based upon conjecture.

46The trial judge did not require proven facts nor did she put an obligation on the appellant to provide a reasonable alternative explanation for his bad driving other than his impairment. No doubt a reasonable doubt can arise from the lack of evidence. However, here there was an explanation for the cause of his poor driving based on the strong odour of alcohol on his breath and slight slurring of his speech. While both indicia establish consumption and not impairment of the ability to drive, they provided an explanation for his poor driving in the context of all the evidence. This is not a gap in the evidence case.

47The issue was whether there were reasonable alternative explanations other than guilt. The Crown is not required to negative every possible conjecture nor conceivable inferences to explain the poor driving. What the appellant seeks to do is rely upon “purely hypothetical” narratives or causes that were nothing more than “just possibilities.” They do not equate with reasonable alternative explanations.

48The trial judge correctly applied the law of circumstantial evidence to the evidence in this case.

Conclusion

49The appeal is dismissed.

DURNO J. Released: October 4 2016