Court File and Parties
CITATION: R. v. Andrews, 2016 ONSC 839
COURT FILE NO.: CR-14-3238-AP
DATE: 20160202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
TROY ANDREWS Appellant
Tom Meehan, for the Crown
Frank Miller, for the Appellant
HEARD: January 28, 2016
REASONS ON SUMMARY CONVICTION APPEAL
CAREY J.
BACKGROUND
[1] The appellant appeals his conviction for operating a motor vehicle while impaired, contrary to s. 253(a) of the Criminal Code of Canada, on September 2, 2014, by Justice R. Marion.
[2] At the trial, both the Crown and defence called one witness each on the issue of impairment. The Crown relied on the evidence of the arresting officer who observed the driving and arrested the accused at his home after seeing him exit the vehicle. The defence called the 18 year old stepson of the appellant, Dylan Pillon, who gave brief evidence as to his observation of the appellant's ability to walk over a short distance in his driveway, immediately prior to his arrest.
ISSUE
[3] The defence submits that the trial judge rejected the evidence of the stepson, Dylan Pillon, because he has a familial relationship to the appellant. Counsel argues that it was a reversible error to reject the evidence of Mr. Pillon because of his relationship to the appellant and that the conviction cannot stand given the credibility issue between Constable Greg Chemello, the arresting officer, and Mr. Pillon.
ANALYSIS
[4] The appellant is correct that the trial judge would have been in error if he discounted Mr. Pillon's evidence solely because he was the appellant's stepson. In dealing with this issue recently, in R. v. S.C., 2016 ONCA 83, the Ontario Court of Appeal cited Justice Charron in R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397 at para. 11:
“The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness’s testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility.”
[5] The trial judge’s reasons should be treated with deference. He had the advantage of hearing the witness’ testimony. It is clear from his reasons that he did not reject the evidence of Mr. Pillon solely because he was the appellant’s stepson. Rather, from what he noted, Mr. Pillon testified that when he saw the police he considered that they were there because his stepfather had been drinking. When pressed on cross-examination as to his reasons for that conclusion, Mr. Pillon testified it was due to, “...what was going on with him and my mother maybe, that would cause people to drink.” He clarified there were difficulties in the home at the time of this incident. The following exchange with Crown counsel is excerpted:[^1]
“Mr. Houle, Q. Yeah? Okay and that was kind of the first thing that came into your mind right, when you saw the police you said, “Oh oh Dylan, dad’s been drinking and driving?”
Mr. Pillon, A. No, it was either my mom, my mom called the called the cops or, or something happened.
Q. Okay but you, your evidence was that you thought that the police were there because your dad had been drinking?
A. No.
Q. But that what was you just told us? That was what your evidence was.
A. All right."
[6] When pressed by the Crown as to what led him to conclude the police were there because his father had been drinking, he answered:[^2]
"A. Because, because, what was going on cause people to drink. My mom was drinking every day.
Q. Does your dad drink...
A. So, so obviously he didn't want to be around her, so he has to go somewhere else to...
Q. Does your dad...
A. ...relax and...
Q. Okay, was your dad drinking every day at that point in time, too?
A. No.
Q. Pardon?
A. No.
Q. Okay and again, I would understand if it was your mom that was in the car that the police were arresting because you said your mom drank every day but there must have been, again, something in your mind that lead to the conclusion that it was that your dad had been drinking and that's why the police were there. I'm just not clear as to what that is. There's something there, I know there's something there that puts that in your mind and I know, just don't think you're telling us?
A. Yeah, because because when he pulled in the cops pulled in, so what else are you going to think?
Q. I see, so the contact of the opportunity that you had to see your dad, your step-father, from the point in time that he gets out of the car until the point in time that he's taken into custody is only a few seconds, is that fair?
A. Until he was put into handcuffs, there's, there was about two words said, so...
Q. So it was a very short period of time?
A. Yes.
Q. Okay, okay sir, those are all the questions I have, thank you."
[7] Two observations can be made from this exchange. First of all, Mr. Pillon had clearly backpedaled from his statement that when the police arrived, behind his father's car, his first thought was they were there because he had been drinking. Secondly, as the cross-examination concluded, he confirmed he had observed his stepfather for only a few seconds, "a very short period of time."
[8] In his reasons, Justice Marion note“ of Mr. Pillon's evidence:[^3]
”...and he said that his father was walking normally when he exited the vehicle and walking normally as he walked in the direction of the police officers. He also said in his testimony, when he saw the police he considered his step-father had been drinking. After giving his testimony he was not forthcoming with the reason for his conclusion. In my opinion, his testimony is compromised by his relationship to Mr. Andrews. I accept the evidence of Officer Chemello as to Mr. Andrews being unsteady on his feet as he walked in the direction of the officers, as opposed to Mr. Pillon's version of events."
[9] He later observed:[^4]
"Officer Chemello gave ’is evidence fairly and in detailed fashion” He agreed in cross-examination as to areas where Mr. Andrews displayed no evidence of impairment, such as in his speech but he also stated that he was unfamiliar with his normal speech."
[10] It is clear, from reading the reasons as a whole, the trial judge preferred the evidence of Officer Chemello because of the way that he gave his evidence. He rejected Mr. Pillon's evidence after he concluded he was not forthcoming with the reason for his conclusion earlier, that his father had been drinking. The trial judge's comment on Mr. Pillon's relationship to the appellant was given as a reason for him not to be forthcoming, not as the reason for rejecting his evidence. On the basis of all the evidence before the trial judge, including the brevity of Mr. Pillon's observations, it was clearly open to him to prefer the evidence of Officer Chemello.
[11] The trial judge carefully reviewed the evidence of the driving and found it to be more than bad driving and more than erratic driving. He concluded that the driving was:[^5]
"...aggressive and erratic...reckless and dangerous. It occurs in a school area. Although school is not in session in the evening, community use of schools is prevalent and driver vigilance is expected. Certainly the driving that was observed by the officer is an example of exceptionally bad judgment in terms of the operation of a motor vehicle. Mr. Andrews drove through an intersection, did not stop and based on the observations of the officer, could not have stopped; slowed his vehicle down but then accelerated through on Totten Road. He drove past two schools; he swerved in the roadway driving at a high rate of speed; he failed to signal a left turn; he then failed to obey another stop sign at Campbell and Everts; he drove quickly into the driveway, his driveway, coming to an abrupt stop. His driving exhibits very poor judgment, disregard for the rules of the road and safety of the public and poor motor function.
The officer then makes observations of indicia of alcohol consumption; the odour of alcohol on his breath, bloodshot and watery eyes and being unsteady on his feet as he walked in the direction of the arresting officer."
[12] In my view, the trial judge correctly summarized the evidence before him and applied the correct law to that evidence.
[13] In addition to my view that he correctly evaluated Mr. Pillon's evidence, it is clear that Mr. Pillon's evidence was based on a very short observation and one small part of the indicia of impairment relied upon by the trial judge in coming to his conclusions that the appellant was guilty. There was ample credible evidence, unchallenged by the appellant, which supported that finding.
[14] Accordingly, the appellant's appeal on the impaired conviction is dismissed.
[15] Regarding count two (exceeding the blood alcohol limit), the appellant argued that the trial judge had made no findings of fact or law or guilt in respect of that count, despite lengthy arguments. Instead, count two was stayed pursuant to R. v. Kienapple (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524, [1974] S.C.J. No. 76. The appellant submits, that conclusion was incorrect because no findings had been made with regard to count two. While I am not in disagreement with that observation, the stay was not appealed by the Crown or defence. As a result, it is not before this court.
[16] Appeal dismissed. As there was no appeal of the sentence, it is confirmed.
“original signed and released by Carey J.”
Thomas J. Carey
Justice
Released: February 2, 2016
CITATION: R. v. Andrews, 2016 ONSC 839
COURT FILE NO.: CR-14-3238-AP
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TROY ANDREWS
REASONS ON SUMMARY CONVICTION APPEAL
Thomas J. Carey
Justice
Released: February 2, 2016
[^1]: Proceedings at Trial, September 2, 2014 – Cr-Ex, Dylan Pillon - Pg 48, Line 25 to Pg 49, Line 6 [^2]: Proceedings at Trial, September 2, 2014 – Cr-Ex, Dylan Pillon - Pg 49, Line 13 to Pg 50, Line 13 [^3]: Reasons for Judgment, September 2, 2014 – Pg 4, Line 19 to 30 [^4]: Ibid, Pg 4, Line 8 - 13 [^5]: Ibid, Pg 5, Line 18 to Pg 6, Line 11