Court File and Parties

Court File No.: CR16-0011AP Date: 2017-05-17 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent – and – Robert Sheppard, Appellant

Counsel: C. Kalantzis, for the Crown M. Venturi, for the Appellant

Heard: October 26, 2016

Decision on Appeal

HENNESSY, J.

[1] Mr. Sheppard appeals his conviction for refusing to comply with a demand for roadside breath sample.

The Issue

[2] The appellant contends that the trial judge did not consider material evidence in coming to her conclusion that Mr. Sheppard made a clear and unequivocal refusal to the breath demand. The question therefore on this appeal is whether the trial judge considered the material evidence in coming to her decision that Mr. Sheppard made an intentional, clear and unequivocal refusal to provide a breath test.

[3] The appellant contends that the absence of a specific reference to certain answers by the arresting officer made on cross-examination demonstrate that the trial judge failed to consider material evidence.

Facts

[4] The appellant was involved in a serious motor vehicle accident on Manitoulin Island on November 30, 2014. One person was seriously injured. An Ontario provincial police officer attended the scene. Mr. Sheppard acknowledged that he was the driver. The officer asked the appellant to come to the cruiser. The officer detected a strong odour of alcohol on the appellant’s breath and noticed that his eyes were red. She then made a demand for a roadside breath test.

[5] Ultimately the officer made the demand for a breath sample three times. The appellant did not provide a sample.

The Law

[6] The test for refusing to comply with a demand for a breath test is whether the trial judge has failed to consider evidence that is “material rather than peripheral” and that plays “an essential part in the reasoning process.” R. v. Loher, 2004 SCC 80, at para. 2.

[7] If the question is framed as sufficiency of reasons issue, the test is whether the trial judge’s reasons, having regard to the particular circumstances of the case, are reasonably intelligible to the parties and provide the basis for meaningful appellate review of the correctness of the trial judge’s decision.

Discussion

[8] The nub of the issue under appeal is found within the three exchanges between the officer and Mr. Sheppard at the scene of the accidence. The trial judge found, and the appellant did not contest, that the officer made a clear and unequivocal demand for a breath test. The issue is whether Mr. Sheppard’s responses meet the test for a refusal or whether they could be interpreted in a way which does not constitute a clear and unequivocal refusal.

[9] In her reasons, the trial judge conducted a careful analysis of the evidence of both the officer and Mr. Sheppard.

[10] The judge reviewed Mr. Sheppard’s testimony. At one point Mr. Sheppard denied refusing to provide a breath sample. At another point, he could not recall whether he answered the officer as the officer testified. The appellant though focused his argument on the cross-examination of the officer where he put to her a series of possible alternate answers that Mr. Sheppard might have given in response to the demand for a breath sample.

[11] Counsel asked the officer if it was possible that in response to the last demand Mr. Sheppard replied: “I’m not blowing into this machine or any other machine until I go to the hospital.” The officer initially agreed this was possible. However, the cross-examination concluded with the officer insisting that Mr. Sheppard was adamant when he said, “I’m not blowing into this machine or any other machine” and there were no extra words that suggested that the answer was conditional upon going to the hospital.

[12] While the officer admitted that she did not make a note of Mr. Sheppard’s exact words in response to each demand, she was clear that his final response was “I’m not blowing in that machine or any other machine. Do what you have to do.”

[13] The appellant submits that the fact that the trial judge did not note in her reasons the other possible responses from the appellant is a reversible error. The appellant argues that the trial judge must articulate or allude to the cross-examination and why some parts of the officer’s evidence was accepted while other parts were not.

[14] In response, the Crown made submissions on three points:

1. Adequacy of reasons.
2. Whether the Court must resolve the actual wording used even if the judge was satisfied that the demand was refused.
3. Whether a response with a condition precedent constitutes a refusal.

[15] The Crown relies on the standard of adequacy of reasons cited in R. v. Newton, 2006 ONCA 200 where the court stated that reasons are adequate if they clearly tell the losing party why he/she lost and provide for meaningful review. In Newton the court rejected the proposition that by failing to refer to a piece of evidence that may have assisted the accused, the reasons are inadequate.

[16] The appellant’s argument is based on an attempt to pull apart the cross-examination and focus on one response while ignoring the totality of the evidence. It is correct that the officer at one point conceded that Mr. Sheppard may have provided a less equivocal response to the demand. But by the end of her cross-examination, she was clear in her recollection of Mr. Sheppard’s response.

[17] The officer wrapped up her exchange on cross-examination with respect to Mr. Sheppard’s final response as follows:

Answer: I’m, I’m pretty clear, he – And even with the hospital, it was, he was adamant, “I’m not blowing into that machine or any other machine.” There was no…. Question: That’s only as it relates to this third? Answer. Yes. Question: Okay. Answer: He was very clear that, and that was it, there was no…. Question: Okay. Answer: …extra.

[18] Even if the words are not an exact recollection, the officer resisted the suggestion that there were any qualifying words to his final response.

[19] In her reasons, the trial judge specifically refers to the cross-examination. She does not recite each question and answer and she notes that the officer does not have a perfect recollection. But the trial judge accepts the officer’s evidence of Mr. Sheppard’s final response. She notes that Mr. Sheppard’s conduct was unambiguously consistent with a refusal and she further noted as suggested by the defendant that Mr. Sheppard repeated his need to go to the hospital. I am satisfied that the judge considered the material evidence as she was required to do. (R. v. Porter, 2012 ONSC 3504). The judge was not required to make a finding on the exact words used by the appellant. (R. v. Sures, 2010 ONCA 305)

[20] It is clear from her reasons that the trial judge appreciated the full cross-examination of the officer. While the first response to the demand may have included a condition precedent about going to the hospital, the trial judge came to the conclusion, as she was entitled to do on the evidence, after considering all of the circumstances that Mr. Sheppard demonstrated “a conscious act of volition… not to provide a sample.”

[21] The deference to the trial judge is not displaced because she did not recite one of the answers on the officer’s cross-examination. Instead, she reviewed all of the evidence and rejected the interpretation urged upon her by the defence. The possibility that early in the exchange Mr. Sheppard may have been somewhat less clear was not lost on the trial judge. However, she ultimately focused on Mr. Sheppard’s final response to the officer, on which the officer indicated she had a clear recollection. The trial judge notes that even if an earlier response had not been unequivocal, his final response was an outright refusal. This was a finding she was entitled to make on the evidence. There is no misapprehension of the evidence. To the contrary, the trial judge’s conclusion is fully supported by the evidence and is the only reasonable conclusion to draw from the evidence. She fairly summarized all of the evidence.

[22] An appellate court will only be justified in intervening where a trial judge draws an inference or makes a finding of fact that is plainly contradicted by the evidence relied upon or demonstratively incompatible with the evidence that is not otherwise contradicted or rejected by the trial judge.

Conclusion

[23] The reasons of the trial judge do not disclose a misapprehension of the evidence. The trial judge did not fail to consider material evidence. The reasons demonstrate that the trial judge was alive to the suggestions put to the officer in cross-examination and came to the conclusion that they were not supported by the evidence. The reasons provided were sufficient for rejecting the defence’s contention that Mr. Sheppard might possibly have provided an ambiguous response to the demand for a breath sample.

[24] The appeal is dismissed.

The Honourable Madam Justice Patricia C. Hennessy Released: May 17, 2017