R. v. Kovacevic, 2017 ONSC 193

COURT FILE NO.: SCA(P) 1131/15 DATE: 2017 01 10

ONTARIO

SUPERIOR COURT OF JUSTICE

(SUMMARY CONVICTION APPEAL COURT)

B E T W E E N:

HER MAJESTY THE QUEEN Respondent P. Renwick, counsel for the Respondent

- and -

BOBAN KOVACEVIC Appellant S. Price, counsel for the Appellant

HEARD: September 22, 2016

REASONS FOR DECISION

(On appeal from the decision of Justice I.B. Cowan Dated July 29, 2015)

Fairburn, J.

(I) Overview

1Following an accident during the early morning hours of February 5, 2012, the appellant was arrested for impaired operation of a motor vehicle. Breath tests revealed a blood alcohol content of more than twice the legal limit. On July 29, 2015, the appellant was found guilty of operating a motor vehicle: (1) while impaired and (2) while having a blood alcohol concentration in excess of 80 mgs in 100 mls of blood. The second count was conditionally stayed. Mr. Kovacevic appeals from conviction.

2While there is little merit to much of the appeal, there are two grounds upon which a new trial must be ordered. They relate to the means by which the appellant’s credibility was rejected at trial.

(II) The General Facts

(a) The accident

3The appellant admits that he drank between five and six Coors Light “Tall Boy” beers at his sister’s home. The cans are either 470 or 480 mls in total. He started drinking around 7:30 p.m. He said that he was not a big drinker and had only “nursed” his drinks. He left his sister’s place around 30 minutes before the accident which occurred around 2:00 a.m.

4He was driving his SUV northbound on Winston Churchill Blvd. A car with a 17-year-old driver was heading southbound. The appellant attempted to turn left onto Artesian Road. Before he cleared the intersection, the southbound vehicle hit his SUV’s backend.

5The young driver apologized to the appellant for having hit him. She testified at trial that she apologized because she did not have much driving experience and thought she should apologize as, among other things, the appellant was blaming her for the accident. She said that the light was green when she entered the intersection. While she saw a vehicle about to make a left turn, she assumed that the driver would stop and wait for the southbound traffic to clear the intersection. Instead, the vehicle turned left in front of her and, while she slammed on her brakes, she could not avoid hitting the SUV’s backend. She believed that the speed limit in that area was 60 kph and she may have been travelling at 60 or 65, possibly even 70 or 80 kph.

6A second driver heading southbound, behind the young woman’s vehicle, thought that the southbound light at Winston Churchill and Artesian Road was originally red but turned green before the young driver proceeded into the intersection. The witness testified that the appellant pulled in front of the young driver’s car. She waited with the young woman and told her not to apologize because the accident was not her fault. When the police arrived, the witness informed an officer that the appellant was the driver of the SUV.

7A third civilian witness testified that he was waiting at a red light, facing eastbound toward Winston Churchill. He saw the SUV facing northbound waiting to make a left turn onto Artesian. He did not see the accident as he had looked away just before the impact. He said that the lights were green for both the southbound and northbound traffic.

8Sgt Edwards came across the accident by happenstance at 1:57 a.m. He spoke to the civilians and told the drivers of the two vehicles to get their documents. Sgt. Edwards said that he obtained the licences and insurance from both drivers. He noticed a strong odour of mint coming from the appellant’s mouth and that he was behaving “strangely”. Sgt. Edwards did not notice any signs of impairment. None of the civilians expressed concerns about the appellant’s level of sobriety.

9A few minutes after Sgt. Edwards arrived on scene, two other officers arrived. Sgt. Edwards told them to speak to the appellant and attempt to ascertain the cause of the accident. The appellant testified that he felt that he was obligated to answer the officers’ questions at the scene of the accident. He told them that the accident was the other driver’s fault. The appellant testified that he entered the intersection with a left hand turn signal, but could not clear the intersection before the signal changed and so he waited to make his westbound turn. After the light turned amber he started his turn but was struck.

10The appellant testified on the trial proper that in addition to the Coors Light Tall Boys he had consumed at his sister’s home, he also consumed alcohol after the accident and while waiting for the police. He found a mickey full of Southern Comfort in his car. He testified that he drank the whole mickey because he thought that he would be in trouble for having it in his car. He testified that it went down in about two gulps. He threw the empty bottle into a gas station parking lot.

11The appellant’s sister testified and confirmed that he drank Coors Light beer during the evening. She did not count the number he consumed, but she had no concerns about his ability to drive when he left her home.

(b) Signs of impairment and breath test

12Cst. Brayall testified that he attempted to engage the appellant in conversation so that he could smell his breath, but the appellant kept trying to distance himself from the officer. Cst. Brayall noted that the appellant’s eyes were glossy and detected the odour of alcohol and mint coming from his breath. He asked the appellant about his consumption of alcohol. He first told the officer that he had consumed one to two drinks earlier in the evening and later changed this to two to three drinks. His last drink was around midnight. He was speaking in a slow and deliberate fashion.

13Cst. Brayall formed the opinion that the appellant was impaired by alcohol and asked him to attend at the police vehicle. Cst. Brayall testified that the appellant’s steps were slow and deliberate, but he was not unsteady on his feet. Cst. Brayall told his partner, Cst. Romanyshyn, that Mr. Kovacevic was going to be arrested for impaired driving. His grounds were the smell of alcohol on the appellant’s breath, his glossy eyes, his slow and deliberate answers to questions and his admission of alcohol consumption. The accident did not form part of his grounds for arrest.

14Cst. Romanyshyn arrested the appellant. He testified that when he first approached Mr. Kovacevic, the appellant was looking in his glove box for his paperwork. He was asked for ownership and insurance but had trouble locating it, despite the fact that Cst. Romanyshyn could see the green ownership document sitting on top of the paperwork.

15He could smell alcohol on the appellant’s breath. The officer testified that the appellant and Cst. Brayall walked toward the police vehicle that was 1.5 car lengths away from the SUV. Cst. Romanyshyn stayed by the appellant’s SUV. He saw the appellant take four steps back towards the SUV when he stumbled. It was described as an “obvious stumble”. Cst. Romanyshyn then escorted him back to the police vehicle.

16Cst. Romanyshyn testified that his grounds for arrest included the smell of alcohol on the appellant’s breath, his obvious stumble, and the fact of the motor vehicle accident. While he did not mention it as part of his grounds, he also noted that the appellant had told the officers that he had consumed alcohol earlier in the evening. As for the accident, the officer did not know the reason it had occurred. All he knew was that the appellant was struck while making a left turn. Cst. Romanyshyn believed that the appellant’s judgment may have been a factor in the motor vehicle collision.

17Once in the Intoxilyzer room, the appellant declined to answer questions. He said that he was acting on the advice of counsel. The appellant asked the Intoxilyzer technician about the results. While the transcript of his comments in the Intoxilyzer room suggest he said, “so if it’s zero, I’ll take (inaudible)”, the reasons for judgment reveal that the trial judge heard this comment as “let’s hope it’s zero”.

18While it took many efforts to have the appellant provide his two breath samples, at one point being cautioned about refusing, the samples were eventually obtained. While waiting for the results, the appellant expressed the view that it was like “waiting for a baby to be delivered”. When told he was double the legal limit, he said: “I guess we delivered twins.” His readings were 185 and 186 mgs of alcohol in 100 mls of blood.

19Dr. Michael Ward testified for the defence that the odour of alcohol and other things, like watery and bloodshot eyes, are not necessarily indications of impairment. The signs of impairment remain consistent until alcohol in the body has decreased. The signs of impairment cannot be turned on and off.

(c) Expert evidence

20Based on the drinking scenario given by the appellant, the defence expert testified that the appellant could have registered the readings he did, but been well under the legal limit when the accident occurred. While impairment can begin at a reading of “50”, this will not occur in all people. According to the defence expert, the zone between 50 and 100 can be “grey”. On the scenario provided by the appellant’s evidence, he would have likely been below or in the very low end of this zone at the time of driving.

21Based on the same hypothetical arising from the appellant’s evidence, the Crown expert largely agreed with the calculations arrived upon by the defence expert. While she did not go as far as the defence expert, based on the scenario provided, she agreed that not everyone is impaired at the amount of alcohol that would have been in the appellant’s blood at the time of the accident.

(III) Trial Judgment

22The trial judge’s reasons make clear that this was an evidence to the contrary case and that it turned largely on his findings regarding the appellant’s credibility. He articulated the principles from R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and concluded that if he believed the appellant’s evidence or was left in a doubt by it, or the evidence as a whole, then he had to acquit. He summarized what the case came down to as follows:

This case comes down to whether, in applying the principles articulated above in R. v. D.(W.), I believe the defendant or am left in doubt from his evidence, or the evidence as a whole, that after the accident, but before the police arrived, he consumed 13 ounces of Southern Comfort liquor.

23The trial judge noted that while the outward signs of impairment were sufficient to provide the grounds for arrest, they were insufficient to satisfy him that the appellant’s ability to operate a motor vehicle was impaired by alcohol. As such, if he had a doubt about whether the appellant consumed alcohol following the driving, he would have to acquit because the expert evidence placed the readings in a zone where the appellant may not have been impaired.

24The trial judge then rejected the appellant’s evidence. I will have more to say later about the basis for rejecting his evidence. Having rejected the appellant’s evidence, and finding that it did not raise a doubt, the trial judge found the appellant guilty of both offences. A conditional stay was registered in relation to the blood-alcohol offence.

(IV) Grounds of Appeal

(a) Overview

25The appellant’s approach to this appeal is multi-faceted. The grounds relating to how his credibility was rejected are dispositive and a new trial must be ordered upon this basis. As for the other grounds, in the event that it is necessary to have this court’s views on them at a later time, they are briefly addressed following a discussion of the issues relating to the right to silence and Browne v. Dunn (1893), 6 R. 67 (H.L.).

(b) Using the appellant’s silence to assess credibility

26The appellant spoke to counsel before entering the breath room. He was asked if he would consider answering some questions. He declined to do so on what he said was the advice of counsel.

27Despite his exercise of the right to silence, the appellant said some things in the breath room. For instance, the trial judge made a finding of fact that he expressed his hope that his blood-alcohol reading would be zero. He also expressed dismay when the readings came back at over twice the legal limit. He said things like, “are you serious?”, “I’m double?”, “oh shit”, “wow”, and “I mean wow”. The trial judge also found as a fact that the appellant told the breath technician that “he did not set out to get drunk but only drank at a moderate pace”. [1]

28In rejecting the appellant’s evidence about having consumed alcohol following the accident, the trial judge said the following:

In the Intoxilyzer room, although the defendant exercised his right to remain silent and not to answer questions posed by Constable Pinheiro, in a statement admitted to be voluntary, when Pinheiro explained to him the operation of the Intoxilyzer and the legal limits for drinking and driving, there was no mention by the defendant of how the results would be tainted by the consumption of this bolus drinking. Instead, the defendant expressed his wish for a zero blood-alcohol result when, if his evidence is to be believed, he knew that the reading would be far from that. When he finally did learn of the high test results he could only express dismay when, I find that a person knowing that they had recently consumed 13 ounces of alcohol that the police were not aware of, would, out of self-interest, have divulged that fact.

Further, in the breath room he told Pinheiro that he did not set out to get drunk but only drank at a moderate pace. This is in direct conflict with his later evidence of the bolus consumption of alcohol after the accident.

… I find that I do not believe the defendant nor does his evidence or the evidence as a whole leave me in doubt. [emphasis added]

29The appellant says that these comments reflect a breach of the right to silence. Crown counsel responds that the trial judge was merely expressing the view that the appellant’s comments to the police were inconsistent with his trial testimony. The Crown argues that his choice to remain silent on the bolus post-driving drinking is telling when contrasted against what he said at trial. Because he chose to say some things to the police, it is said that it was open to the trial judge to use the appellant’s silence in this way.

30Respectfully, the reasons are not nearly as benign as suggested.

31An accused has a constitutional entitlement to silence under s. 7 of the Charter. With very limited exceptions, an exercise of this constitutional right cannot be used as evidence to incriminate an accused or impeach her or his evidence at trial: R. v. Turcotte, 2005 SCC 50, at paras. 48; R. v. Poirier (2000), 133 O.A.C. 352, at para. 18. As for impeachment, Borins J.A. held in Poirier, at para. 18: “when it is the accused whose testimony is being impeached, an allegation that he or she did not speak out, or give an explanation of his or her conduct, at an early opportunity, conflicts with his or her right to remain silent”. See also: R. v. Rivera, 2011 ONCA 225, at paras. 114-19; Turcotte, at paras. 46-58; R. v. Palmer, 2008 ONCA 797, at para. 9; R. v. Rohde, 2009 ONCA 463, at para. 18.

32The question is whether an accused who has said some things to the police, but not others, can be impeached by what he did not say. In R. v. L.(G.), 2009 ONCA 501, at para. 39, Blair J.A. held that regardless of whether an accused chooses to speak during a police interview, he retains the right to remain silent on issues of his choosing. The right to silence is not “extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely”. A trial judge is prohibited from drawing an adverse inference against the accused’s credibility on the simple basis that he did not say things during the police interview that he later said at trial. This error is sufficient to warrant appellate intervention: G.L., at para. 39.

33In assessing this issue, it is also helpful to also consider jurisprudence that amplifies upon the circumstances in which an accused may be cross-examined on a prior statement where he is alleged to have left some things out. In R. v. W.L., 2015 ONCA 37, at para. 19, Speyer J. (ad hoc) reinforced the general rule that the constitutional right to silence “is not extinguished when an accused chooses to speak to an officer with respect to some matters, but not others”.

34Despite the strength of the rule against cross-examining on prior omissions during a police statement, there are exceptions. In R. v. Hill, 2015 ONCA 616, the accused provided a statement explaining how he killed the deceased by strangling her. He testified at trial that the deceased physically and verbally abused him before he strangled her. During cross-examination, he was confronted with having failed to tell the police about the abuse. On appeal, he argued that the Crown had improperly used his right to silence to impeach his credibility.

35Justice Doherty found that “omissions can be integral to the existence of material inconsistencies between two versions of events”. Where an accused gives an “account of an event which leaves out important details”, this may be viewed as “inconsistent with a subsequent account that includes those details”: Hill, at para. 45. The key is to focus on the purpose for the cross-examination. Where the purpose is to challenge the credibility of the accused on inconsistencies between his trial testimony and his previous account, then the cross-examination may be permitted. Doherty J.A. went on, “[i]f, however, the cross-examination invites the trier of fact to draw an adverse inference from the accused’s silence when questioned by the police, the cross-examination is inappropriate”: Hill, at para. 46.

36Unlike G.L. and W.L., the cross-examination in Hill did not invite the jury to draw an adverse inference arising directly from the silence. The cross-examination remained properly focussed on inconsistencies between the original and trial versions of events.

37Respectfully, I am unable to reconcile the trial judge’s comments in this case with these authorities. The appellant’s credibility was rejected for a number of reasons, some of which were entirely appropriate. For instance, the trial judge reasoned that the appellant’s evidence about bolus post-driving drinking made “no sense”. Having regard to all of the circumstances, it was open to the trial judge to come to this conclusion.

38It was also open to the trial judge to express the view that the appellant’s trial version of events was inconsistent with the his expressed wish for a zero reading. The trial judge was merely observing that if someone has just consumed 13 oz of alcohol, they would be unlikely to say they were hoping to register a zero reading. While an expressed wish for a zero reading is not necessarily inconsistent with having recently consumed alcohol, as people wish for all kinds of things they know will not come true, it was open to the trial judge to use this comment as a factor in his assessment of credibility.

39The trial judge also found a lack of credibility arising from a conclusion that the appellant had told the breath technician that he “did not set out to get drunk but only drank at a moderate pace”. The words attributed to the appellant are inconsistent with his trial testimony that he drank a full mickey of alcohol after the accident. It was open to the trial judge to use this comment in this way.

40The difficulty is that the trial judge also rejected the appellant’s credibility because of what he did not tell the police. After noting that the appellant “exercised his right to remain silent and not to answer questions posed”, the trial judge commented that he did not mention “how the results would be tainted by the consumption of this bolus drinking”. While this passage could be read as a simple observation of fact, the trial judge went further and reasoned as follows: “I find that a person knowing that they had recently consumed 13 ounces of alcohol that the police were not aware of, would, out of self-interest, have divulged that fact.”

41This is a problematic comment because it directly intersects with the right to silence. The only inference that can be taken from the comment is that, notwithstanding the right to silence, a person who has recently consumed alcohol would tell the police about this fact and a failure to do so can result in an adverse finding on credibility.

42Self-interest or not, a person is constitutionally entitled to withhold information from the police. To suggest that an accused should not be believed because he or she did not speak up at an earlier point in time conflicts with the right to remain silent.

43While gaps in an earlier version of events may be used to test the credibility of an accused on a later and more complete version of events, this is not what happened in this case. The appellant did not provide the police with an earlier version of events. Indeed, he asserted his silence. While he made a few comments in the breath room, they fell far short of providing an account of what happened, an account against which his later account could be measured.

44In the context of rejecting the appellant’s evidence, the trial judge simply concluded that someone in the appellant’s position would have divulged the post-driving drinking to the police. By doing so, he erred in using the appellant’s silence as a means by which to assess his credibility. This constitutes a prohibited use of the constitutional right to silence.

45As this was an evidence to the contrary case, the appellant’s credibility was central to the result. If his evidence was accepted or raised a doubt, he would have been acquitted. A rejection of his evidence led to an almost certain conviction. Despite multiple reasons being given to reject his evidence, the use of his silence on the post-driving consumption of alcohol to reject his credibility cannot be characterized as a harmless error or one that could not have impacted the verdict: R. v. Van, 2009 SCC 22, at para. 34. While not every error in a criminal trial warrants appellate intervention, this error does not fall into the category of harmless. Nor is the case so strong that no other verdict was possible: Van, at para. 34; R. v. Khan, 2001 SCC 86, at paras. 26, 29; R. v. O’Brien, 2011 SCC 29, at paras. 32-35; R. v. Sekhon, 2014 SCC 15, at paras. 84-6.

46Notwithstanding the trial judge’s lengthy and considered reasons for judgment, the impact of this error on the result of the trial was potentially serious. This conclusion is reinforced when considered against an error in the application of the rule arising from Browne v. Dunn.

(c) The alleged Browne v. Dunn error

47The appellant says that the trial judge erred when he rejected his credibility based on an alleged breach of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). The trial judge observed that the civilian witnesses, who “might have been in a position to see … drinking taking place” or the bottle being tossed, were not asked about whether they made any observations to this effect. This was found to be a clear breach of Browne v. Dunn. While the trial judge found that the breach of Browne v. Dunn was “an added factor to consider when assessing the defendant’s credibility and diminishes it further”, he also concluded that he would have rejected the appellant’s evidence “[e]ven without the application of the principle in Browne and Dunn”.

48The principle of law at issue in this ground of appeal is rooted in fairness. It requires a party who seeks to impeach the credibility of a witness called by the opposite party, to provide the witness with the opportunity to provide an explanation for contradictory evidence, even if the evidence has not yet come to light. As noted by Watt J.A. in R. v. Quansah, 2015 ONCA 237, at para. 75, “the party who seeks to impeach must give the witness an opportunity, while the witness is in the witness box, to provide any explanation the witness may have for the contradictory evidence”. See also: R. v. McNeill (2000), 144 C.C.C. (3d) 551 (Ont. C.A.), at paras. 44-45. As Watt J.A. held in Quansah, at paras. 76-77, it is a “confrontation principle” that ensures fairness to a witness whose credibility will be attacked, fairness to the opposing party, and fairness to the trier of fact who “would be deprived of information that might show the credibility impeachment to be unfounded”. It is not an inflexible rule.

49There is no dispute that the civilian witnesses were not asked about whether they saw the appellant drinking and or disposing of a bottle. While they may or may not have seen this activity, even if Browne v. Dunn gives rise to an airtight rule, the appellant was not under an obligation to confront the civilians because they were not being impeached by his later evidence. While it would have been open to Crown counsel to seek to have the civilian witnesses recalled after the appellant gave his evidence, there was no obligation on the defence to proactively put the matter to the civilians.

50The Crown says that whether the rule in Browne v. Dunn was breached or not is irrelevant to the trial judge’s ultimate credibility findings because he said that, even without the application of the principle, he would have rejected the accused’s evidence. While there is some merit to this argument, it loses traction when considered against the right to silence issue. The reasons extending beyond Browne v. Dunn for rejecting the accused’s evidence rely, at least in part, on the error related to silence. The combination of the right to silence and Browne v. Dunn errors, and their impact on the critical issue of the appellant’s credibility, cannot be characterized as harmless. The verdict would not necessarily have been the same. They require that a new trial be ordered.

(d) The alleged Milne/Coutts/Orbanski error

51On August 5, 2014, the trial judge released a lengthy Charter ruling that included a detailed and careful review of the facts. Among other things, the trial judge concluded that the police had reasonable grounds to arrest. In the course of making this finding, the trial judge reviewed the appellant’s statements to police officers prior to his arrest.

52The facts from the Charter ruling appear to have been transferred into the reasons for judgment. The appellant takes issue with the fact that his roadside statements, including reference to the two to three drinks he had consumed, were relied upon by the trial judge. He says that this constitutes an error under R. v. Milne (1996), 107 C.C.C. (3d) 1818 (Ont. C.A.) at pp. 128-31, leave to appeal ref’d, [1996] 3 S.C.R. xiii and R. v. Coutts (1999), 45 O.R. (3d) 288 (Ont. C.A.).

53A detained person is typically entitled to promptly know the reason for her or his detention and to be informed of the right to retain and instruct counsel without delay. In the context of impaired driving investigations, the s. 10(b) right is suspended while the roadside investigation plays through: R. v. Orbanski, 2005 SCC 37, at paras. 52-3. The suspension of the s. 10(b) right is in part justified because evidence compelled during the period of suspension cannot be admitted at trial to incriminate the accused: Orbanski, at para. 58. Evidence that is compelled while the s. 10(b) right is suppressed may only be used to assess the subjective and objective reasonableness of an officer’s grounds as they relate to impairment: Orbanski, at para. 58. See also: Milne at pp. 128-31; R. v. Rivera, 2011 ONCA 225, at paras. 55-56.

54While this is a robust rule, it is important not to lose sight of the fact that not every motorist approached by the police is cloaked in s. 10(b) Charter protection. If there is no pre-existing s. 10(b) right, then there is no need to suppress the right. If there is no need to suppress the right, then there is no need to justify the suppression by precluding the consideration of incriminating evidence on the trial proper.

55While motorists who are pulled over by the police are detained within the meaning of s. 9 of the Charter, [2] motorists who are approached by the police because of a motor vehicle accident may stand on a different constitutional footing. For instance, in R. v. Guenter, 2016 ONCA 572, Brown J.A. found that following a motor vehicle accident, statements made to an officer making initial inquiries about what happened, were not made in the context of a detention. In this type of situation, the admissibility issue focusses on whether the statements are compelled and, therefore, constitute a violation of s. 7 of the Charter: R. v. White, [1999] 2 S.C.R. 417.

56Compulsion implies an absence of consent. If a person speaks to the police freely, then they cannot be said to be compelled to do so, even if there is a provincial statute in place that requires them to speak to the police: White, at para. 76.

57In this case, the appellant argues that there was a clear Milne/Coutts error because the trial judge used his roadside statements, including about alcohol consumption, as incriminating evidence. It is not at all clear that this issue was raised before the trial judge. He does not appear to have been asked to rule on whether the appellant was detained when he was asked certain questions and made the impugned comments. While it appears that the appellant’s comments may have bridged a period of detention and non-detention, it is not for an appellate court to determine, for the first time on appeal, whether an individual was detained.

58As for the compulsion issue, the trial judge only appears to have been asked to rule on the appellant’s acknowledgement that he was the driver of the SUV. Based on the trial judge’s summary in the Charter ruling, the appellant only seems to have argued that the statement about being the driver of the SUV was compelled and, therefore, could not be used as part of the grounds for arrest. The trial judge concluded that there was no need to decide the issue because there was ample evidence, including from a civilian witness, that the appellant was the driver. Like detention, it is not for an appellate court to determine, for the first time on appeal, whether an individual was compelled to speak within the meaning of White.

59Even assuming the appellant was detained and or compelled to speak, he cannot succeed on this ground of appeal. While the trial judge reviewed his statements at the roadside, including about his consumption of two to three drinks, there is no evidence that the trial judge relied upon the statements to find the appellant guilty.

60The breath demand led to the readings and, after a rejection of the accused’s evidence, the readings led to the finding of guilt. While the statements were reviewed in the reasons for judgment, they formed no part in the chain of reasoning that resulted in a finding of guilt. Therefore, even assuming an error, it was harmless in nature and had no bearing on the result.

(e) Alleged lack of privacy during counsel call

61The appellant testified that he could hear officers talking and laughing outside of the room where he was placed to exercise his right to counsel. He could not make out what the officers were saying. He testified that he thought that if he could hear the officers, they could hear him and that this limited his ability to freely consult with counsel. He said that he believed one officer looked in the window of the room two to three times while the call was taking place. When the call was over, he let the officers know by knocking on the door. He was not interrupted while speaking to counsel.

62Cst. Romanyshyn testified that the appellant was placed in a soundproof room and could not be overheard discussing matters with his counsel. When he emerged from the room, he did not complain or comment upon his lack of privacy. In the breath room, the appellant confirmed that he had spoken with counsel and did not raise a concern for privacy.

63While a lack of privacy during a call with counsel may trigger a s. 10(b) breach, the accused must establish on a balance of probabilities that he or she believed that counsel could not be retained and instructed in private and the belief must be reasonably held in all of the circumstances: R. v. Cairns, [2004] 182 O.A.C. 181, at para. 10.

64This ground of appeal is easily disposed of. The appellant held the onus and he failed to satisfy the trial judge of the truth of his claim, even on a balance of probabilities.

(f) The section 8 application

65The appellant says that there were insufficient grounds to arrest him and make the breath demand. Much time was spent in oral argument with the appellant parsing the transcript from the officers’ evidence. I find no merit to this ground.

66The trial judge relied heavily upon Durno J.’s judgment in R. v. Grant, 2014 ONSC 1479, extensively quoting from it for purposes of reviewing the grounds necessary to arrest and demand a breath sample. By reviewing Grant, which in turn quotes from R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont. C.A.), the trial judge correctly set out the law for determining whether reasonable and probable grounds exist. He correctly observed that the test is whether, objectively, there are reasonable and probable grounds to believe that the suspect’s ability to drive was even slightly impaired by the consumption of alcohol: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff’d , [1994] 2 S.C.R. 478, as cited in R. v. Bush, at para. 48.

67All of the circumstances must be taken into account in determining whether sufficient grounds exist to arrest and demand a breath sample. While this is a largely fact-based exercise and trial judges’ findings of fact are owed deference, whether a police officer has objectively reasonable grounds is a question of law and one that is reviewable on a standard of correctness: R. v. Wang, 2010 ONCA 435, at para. 18; Bush, at para. 48.

68Here, the trial judge carefully reviewed the facts. He noted that the first officer on scene did not make note of any signs of impairment. He also reviewed Cst. Brayall’s reasons for believing that the appellant was impaired. He further noted Cst. Romanyshyn’s grounds for forming the same belief. While the trial judge noted differences between Brayall and Romanyshyn’s evidence, he took consideration of R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. Sup. Ct.), where Hill J. noted the fact that not all witnesses at a roadside stop will necessarily make the same observations. The fact that officers see different things does not necessarily render their observations unreliable.

69The appellant argued forcefully that the trial judge was wrong to consider the accident as informing the objective grounds for the arrest and demand. I disagree. The trial judge was right to conclude that “the consumption of alcohol, plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case”. There is ample authority to support this suggestion: R. v. Rhyason, 2007 SCC 39, [2007] S.C.J. No. 39, at para. 18; Bush, at para. 54.

70It was open to the trial judge to find that Cst. Romanyshyn formed subjective reasonable and probable grounds to believe that the appellant was impaired by alcohol while operating his SUV and that this belief was objectively reasonable in the circumstances. There was ample evidence of at least slight impairment. This ground of appeal cannot succeed.

(g) The alleged misapprehension of evidence

71The appellant also argued that the trial judge “misinterpreted certain evidence” and failed to take other evidence into account such that it made the conviction unsafe. While a few examples were given, the appellant has pointed to nothing that would come close to meeting the threshold required to find reversible error. For instance, while he suggests that the trial judge mischaracterized the speed at which one of the witnesses said the young driver was travelling, in terms of the result, it is neither here nor there.

72Even if this error was made, and others of a similar alleged type, a misapprehension of evidence must “play an essential part in the reasoning process resulting in a conviction” before a conviction can be found unsafe. The conviction must rest on the misapprehension of evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 93. The appellant has not suggested any errors of fact – to the extent that any exist – that would rise to this level.

(V) Conclusion

73For the reasons given relating to the use of the rule in Browne v. Dunn and the use of the appellant’s silence to assess his credibility, the appeal is allowed, the conviction is quashed and a new trial is ordered. The appellant is ordered to appear in courtroom 107 at 9:00 a.m. on January 16, 2017.

Fairburn, J.

DATE: January 10, 2017

COURT FILE NO.: SCA(P) 1131/15 DATE: 2017 01 10

SUPERIOR COURT OF JUSTICE – ONTARIO (SUMMARY CONVICTION APPEAL COURT) RE: HER MAJESTY THE QUEEN – and – BOBAN KOVACEVIC BEFORE: Fairburn, J. COUNSEL: P. Renwick, counsel for the Respondent S. Price, counsel for the Appellant REASONS FOR JUDGMENT Fairburn, J.

DATE: January 10, 2017

1The transcript suggests that after being told that drivers are allowed to have some alcohol in their body, and that in Canada the “legal limit is 80”, the appellant said: “What’s up with that? Like I was saying earlier you might wanna keep track or keep count, and just take it lightly so you know, you don’t plan on getting drunk but I don’t know what 8 means, I don’t know what 1 means so.”

2Orbanski, at paras. 30-31.