CITATION: R. v. Lebel, 2017 ONSC 2059
COURT FILE NO.: AP-16-122
DATE: 2017-04-03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
L. Ellins, for the Crown
Respondent
- and -
JERRY LEBEL
M. Wendl, for the Appellant
Appellant
HEARD: March 24, 2017
A.J. Goodman J.:
REASONS FOR JUDGMENT
(On appeal from the Honourable Justice Jennis)
[1] This is an appeal against conviction imposed on August 18, 2016 by Jennis J. of the Ontario Court of Justice at Hamilton, Ontario, reported at [2016] O.J. No. 5060.
[2] In the amended Notice of Appeal, the appellant raised four grounds of appeal. There is no contest as to the trial judge’s factual findings. The focus of the appeal is that those facts do not amount to the ultimate conclusion that the appellant was impaired; the trial judge did not properly apply the circumstantial evidence test and/or reversed the burden of proof; the trial judge erred in law by discounting the evidence at the police station; and the verdict is unreasonable.
[3] During oral submissions, the appellant resiled from the last ground of appeal as advanced in the Appeal Record.
The Evidence at Trial:
[4] On December 13, 2015, the appellant was driving his e-bike Southbound on John Street in the city of Hamilton when he came to the attention of Officer Centurione.
[5] According to the appellant’s factum, the trial judge found the following facts at paras. 20 – 21 of his Reasons:
The evidence which I accept that was not seriously challenged is as follows. One, the accused was operating his E-bike in an apparent erratic manner by swerving side to side within his lane with his feet dangling from the pedals; two, when approached by the police when he was stationary on the bike in the parking lot, he stared straight ahead and did not respond until spoken to; three, while sitting on the stationary bike, he swayed slightly from side to side and when he got off the bike he was also unsteady on his feet; four, there was an odour of alcohol about him; and five, his eyes were glassy and red.
The only contentious observation was the one relating to his production of documentation. While the officers initially testified about him fumbling with his wallet, they both stated it was relating to the accused pulling out his health card and passing by his driver's license, which was the document that was requested. I find that he did produce documentation that was not requested and passed by the document that was.
Positions of the Parties:
[6] As mentioned, the appellant does not dispute the factual findings. He argues that as the facts are not disputed, the question becomes one of an error in law in finding that the facts in this case amount to the legal conclusion that the appellant’s ability to operate a motor vehicle was slightly impaired. The appellant is carefully advancing his position on this point as distinct from a complaint of unreasonable verdict or a misapprehension of the evidence.
[7] The appellant also submits that the learned trial judge erred as he did not properly apply the circumstantial evidence test and by doing so, reversed the burden of proof. A further ground is premised on an argument that the trial judge erred in law by discounting the evidence of the lack of impairment at the police station in arriving at his verdict.
[8] The Crown submits that the trial judge neither erred nor is the verdict unreasonable. First, the trial judge properly applied the legal and factual test for impairment. The evidence amply supports the conclusion that the appellant’s ability to operate a motor vehicle was impaired by alcohol. Second, the trial judge evaluated the circumstantial evidence in its totality and did not reverse the burden of proof. Finally, the trial judge properly weighed the evidence from the events at the police station.
Discussion:
[9] It is settled law that when considering unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence. Rather, the court must thoroughly re-examine and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.
[10] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have acquitted the appellant. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.
[11] An appeal court ought to afford deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence.
Application of the Legal Principles to this Case:
[12] The appellant submits that this court can and ought to substitute its finding for that of the trial judge as there was an error of law in finding that impairment was established.
[13] The appellant submits that there is no real dispute with the facts and as they are accepted, this court may find that the facts do give rise to the test for impairment and thus may substitute its decision for that of the trial judge. The appellant asks this Court to consider this appeal as an error of law as distinct from a determination of unreasonable verdict.
[14] The appellant concedes that he is unaware of any decision directly on point with the facts of the case at bar and the application of the standard of correctness to the undisputed facts.
[15] I confess that I had some difficulty in fully digesting the appellant’s argument and the nuanced approach to the question as to whether the facts found by the trial judge give rise to an unreasonable verdict or whether there was an error of law to the finding of the appellant’s level of impairment sufficient to sustain the conviction.
[16] In support of his position, the appellant refers to R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286 at para. 16:
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. The same reasoning applies if the facts are accepted or not in dispute. In this situation, the court can arrive at the correct conclusion in law without ordering a new trial because factual issues have been settled. Examples of this type of error of law can be found in Belyea v. The King, 1932 CanLII 1 (SCC), [1932] S.C.R. 279, Ciglen v. The Queen, 1970 CanLII 16 (SCC), [1970] S.C.R. 804, Poitras v. The Queen, 1973 CanLII 156 (SCC), [1974] S.C.R. 649, Johnson v. The Queen, 1973 CanLII 198 (SCC), [1975] 2 S.C.R. 160, and Fotti v. The Queen, 1980 CanLII 171 (SCC), [1980] 1 S.C.R. 589.
[17] With respect, I must disagree with the appellant’s application of the principles enunciated in Morin as it applies to this appeal. True, there is no dispute as to the facts found by the trial judge. However, that does not necessarily mean that the question is then framed as a question of law.
[18] What the appellant is attempting to accomplish is to have this appeal framed under an error of law, when in my view the gist of the appeal is essentially a complaint of unreasonable verdict or a misapprehension of the evidence heard at trial. In my view, the appellant is attempting to comingle the principles of appellate review.
[19] The determination of impairment from the totality of the evidence is not a question of law. It is a question of fact derived from the totality of the evidence adduced at trial: R. v. Andrews, [1996] ABCA 23 at para. 23. The appellant’s reference to other cases wherein appellate courts have found a dearth of signs of impairment leading to an acquittal cannot change the scope of the analysis and review from one of question of fact to a question of law.
[20] Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out: R. v. Stellato, [1993] ONCA 3375 at para 14.
[21] As my colleague stated in R. v. Goolcharan, 2011 ONSC 3442 at paras. 4-5, the “issue to be decided on this appeal is not whether, in the appellate court’s view, the evidence at trial led exclusively to the conclusion that the appellant’s ability to drive was impaired by alcohol but whether it was open to the trial judge to come to that conclusion on the whole of the evidence”.
[22] I tend to agree with the Crown that the arguments advanced by the appellant amount to an invitation to retry the case and reach a different conclusion than that reached by the trial judge respecting the charge of impaired driving. An appellate court is entitled to review, re-examine and re-weigh the evidence for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. The Criminal Code prohibits a de novo assessment of the evidence in which the appellant court substitutes its own view for that of the trier of fact: R. v Biniaris, 2000 SCC 15, [2000] 1 SCR 381 at paras. 19- 24.
[23] Contrary to the appellant’s assertions the issue of impairment is a question of fact that the trial judge decides based on the totality of the evidence. A trial judge’s findings of fact and inferences from facts can only be overturned if the judge committed a palpable and overriding error.
[24] The appellant argues that because the facts provided in several cases in support of his position led to acquittals, it is unsafe to convict. With respect, I must disagree.
[25] The facts in the cases presented by the appellant are distinguishable. Briefly, in R. v. Rueban, [2013] O.J No. 2398, the court concluded that the evidence from one of the officers in relation to the indicia of impairment was sufficient for a suspicion of impairment only. In R. v. Comansingh, [2014] O.J. No. 5120, the accused was convicted of Over .80 and acquitted of impaired driving. The trial judge in Comansingh found that there was a reasonable explanation in evidence for the accused stumbling. In R. v. Biagi, 2014 ONCJ 153, [2014] O.J. No. 1596, the trial judge found that there were no apparent signs of impaired driving and little signs of impairment and noted a significant amount of evidence which did not support impairment. In R. v. Joseph, [2014 O. No. 5091, the trial judge noted the lack of an odour of alcohol and the arresting officer’s evidence that there was nothing out of the ordinary in the accused’s speech or balance. Similarly, the court in R. v. Griffin, [2014] O. J. No. 2029, relied on evidence of non-impairment that was not present in the appellant’s case such as balance, dexterity, awareness and fairly normal driving.
[26] The wide variety of facts in the cases presented by the appellant illustrate that all cases must be decided on the facts in evidence indicating both impairment and the lack thereof.
[27] Proof of impaired driving does not require evidence of gross physical symptoms. The trier of fact must be satisfied that accused’s ability to operate a motor vehicle was impaired by alcohol to some degree.
[28] In this case, Jennis J. properly identified and applied the legal test for impaired operation of a motor vehicle, concluding at para 23:
I am aware of the principles stated in Regina vs. Stellato and the facts that the slight impairment of alcohol must be related to the accused’s ability to properly operate a motor vehicle. Given the evidence which I have accepted and applying the legal principles, I find the Crown has proven the elements of that offence beyond a reasonable doubt and the accused is found guilty.
[29] Whether the indicia of impairment were sufficient to support a conviction for impaired driving was an issue at trial. The trial judge heard the evidence and submissions of counsel on this issue.
[30] Based on the evidence in this case, it was open to the trial judge to find the appellant guilty of impaired driving. Justice Jennis concluded at para 22: “I must decide this case on the evidence presented and looked on as a whole; and its totality, there is no other reasonable conclusion other than the accused’s ability to operate a motor vehicle was impaired by the consumption of alcohol.”
[31] Justice Jennis was in the best position to determine if the evidence presented met the legal test for impairment as set out in Stellato and its progeny. As observed in his reasons, the learned trial judge properly applied the facts to the appropriate legal principles. I do not find any overriding or palpable error of law or a misapprehension of the evidence on this pivotal issue. This ground of appeal must fail.
[32] Did the trial judge did not properly apply the circumstantial evidence test and/or reversed the burden of proof?
[33] In my view, the trial judge was alive to the issue and correctly placed the burden of proof on the Crown, stating, “[t]he burden is on the Crown to prove all the essential elements of the offences beyond a reasonable doubt and there is no onus on the accused to prove his innocence”: at para. 2.
[34] In R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 35-37 and 42, the Supreme Court of Canada stated that inferences consistent with innocence do not have to arise from proven facts. However, the Court went on to state that “those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” The Crown is not required to address every possible conjecture. Reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence.
[35] The determination of whether alternative explanations are reasonable in the circumstances is a question of fact. In Villaroman, the court stated “it is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.”
[36] In this case, the trial judge did not ignore hypothetical alternative explanations; rather, he found them to be speculative. At para. 22 of his Reasons, Jennis J. addressed the issue:
The defence submits that there are other possible explanations for some of the conduct relied upon by the Crown, such as deliberate unusual driving, nervousness for the swaying, and time of night for the condition of the eyes. Those, in my view, are speculative. There is no evidence before me that they were the causes. Of course, the accused need not call evidence nor testify, however, I must decide this case on the evidence presented and looked on a whole; and in its totality, there is no other reasonable conclusion other than the accused's ability to operate a motor vehicle was impaired by the consumption of alcohol. The absence of any further indicia of impairment at the police station is some evidence to be considered. However, the more critical evidence which carries the most weight is that of the driving and the indicia around that period of time.
[37] The appellant argues that the alternative explanations suggested in closing submissions, namely that the erratic driving may have been deliberate; swaying could be from nerves; and red eyes could be from the time of night, all raised a reasonable doubt.
[38] Alternate explanations must be reasonable. The question is not whether there are other possible explanations for individual circumstances, but whether the evidence taken as a whole leads to only one reasonable conclusion.
[39] As mentioned, absent cogent evidence, it was open to the trial judge to conclude that the alternative explanations presented were speculative. I observe that counsel invited the court to evaluate each indicia individually. Erratic driving, red eyes and swaying were not the only indications that the Appellant was impaired. The officers also observed that the appellant was unsteady on his feet, there was an odour of alcohol and he passed the officer the wrong identification. When all the observations of the officers are considered in totality, the trial judge was entitled to accept the only reasonable explanation that the appellant’s ability to operate a motor vehicle was impaired by alcohol.
[40] While the burden of proof never shifts to the appellant; absent some evidence to the contrary, the usual indicia of impairment such as bloodshot eyes, slurred speech and lack of balance can be relied upon to found a conviction when married to other indicia of impairment. To paraphrase the discussion in Villaroman, while not every trier of fact would inevitably have reached the same conclusion as did the trial judge, the conclusion reached was a reasonable one.
[41] Indeed, the review is not whether I might have come to a different determination. I am satisfied that the trial judge considered the evidence cumulatively and not evaluate individual components on a piecemeal basis: R. v. Censoni, [2001] O.J. No. 5189 at para 44-47. R. v. Randall, 2015 ONSC 5892.
[42] Indeed, the appellant does not advance an argument that the verdict was unreasonable or that the learned trial judge misapprehended the evidence. I find that the trial judge was entitled to come to the reasonable conclusion that the appellant’s ability to operate a motor vehicle was impaired.
[43] Did the trial judge correctly weigh the evidence of the appellant’s behaviour at the police station?
[44] In his reasons, I am persuaded that the trial judge appropriately placed less weight on evidence of the appellant’s signs of impairment later at the police station. It is logical to conclude that an individual would exhibit more indicia of impairment closer to the time of alcohol consumption.
[45] The passage relied on by the appellant from R. v. Maharaj, [2007] O.J. No. 1184, speaks to use that can be made of indicia of impairment which are present after driving, “evidence of impairment after the driving is highly relevant and the inference that some condition existed at the time of driving can be, and routinely is drawn…the inference being drawn that in the absence of drinking after the arrest, the accused’s ability to operate a motor vehicle was impaired at the time of driving.” In this case, the issue was a lack of indicia after the arrest.
[46] At para. 22 of his reasons, the trial judge recognized that the lack of indicia of impairment at the police station should be considered stating, “[t]he absence of any further indicia of impairment at the police station is some evidence to be considered.” He determined, however, that “the more critical evidence which carries the most weight is that of the driving and the indicia around that period of time.”
[47] In sum, the trial judge was entitled to reject alternative explanations for the indicia of impairment presented during closing submissions. There was no evidence lead on these points. Acknowledging that there was no onus on the accused to advance evidence and the burden of proof always remained with the Crown, Jennis J. found these arguments to be speculative and determined that, “in its totality, there is no other reasonable conclusion other than the accused’s ability to operate a motor vehicle was impaired by the consumption of alcohol.”
[48] The conclusion reached by the jurist was reasonable and is entitled to deference.
Conclusion:
[49] I am neither persuaded that the verdict was unreasonable nor that Jennis J. erred in law or misapprehended the evidence to the legal requirements of the charge as particularized in the information. Further, I do not accept the appellant’s submissions that the factual findings arrived at by the learned jurist amounted to an error in law necessitating a review on a standard of correctness.
[50] For the aforementioned reasons, I do not find a palpable or overriding error warranting appellate intervention. The appeal is dismissed.
A.J. Goodman, J.
Released: April 3, 2017
CITATION: R. v. Lebel, 2017 ONSC 2059
COURT FILE NO.: AP-16-122
DATE: 2017-04-03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JERRY LEBEL
Appellant
REASONS FOR JUDGMENT
(On appeal from the Honourable Justice Jennis)
Released: April 3, 2017