COURT FILE NO.: CR-15-10000102-00AP DATE: 20170621

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – WALTER CREGLIA Appellant

COUNSEL: Neville Golwalla, for the Crown, Respondent Matthew Gourlay and S. Moshe-Steinberg, Student at Law, for Mr. Creglia, Appellant

HEARD: June 15, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] Walter Creglia crashed his car into a guardrail late at night. He had clearly had a lot to drink. He was convicted of impaired driving and “over 80”. The “over 80” charge was stayed and the conviction entered on impaired driving.

[2] The trial judge, Justice Zuker of the Ontario Court of Justice, gave reasons for rejecting the Charter application and convicting the Appellant of impaired driving were convoluted and difficult to understand. He did not explain how he arrived at his conclusions. Although the Charter motion bordered on frivolous and the evidence of impaired driving was strong, the reasons for conviction were not apparent from the record. Although it was a simple impaired driving case, the little analysis that was required was not done. For the reasons that follow, the appeal is allowed and a new trial is ordered.

BACKGROUND

[3] Mr. Creglia was driving northbound on Highway 427 shortly after midnight on November 17, 2014. He crashed into a guardrail. Daniel Burgess, a Ministry of Transport patrol officer, was driving nearby. Mr. Burgess saw the crash. It was about 12:20 am. The roads were slippery. There were other accidents that evening. Mr. Burgess called the OPP and went to the vehicle. Mr. Creglia was in the driver’s seat. The airbags had deployed. He noticed that Mr. Creglia smelled of alcohol. When he walked to the tow truck, he also noticed that Mr. Creglia stumbled a bit. He noted that Mr. Creglia’s speech was slurred.

[4] Constable Fedirchuk arrived at 12:53 am. Constable Fedirchuk was an experienced OPP officer. He and Mr. Burgess knew each other. They had worked together many times before in accident situations. Mr. Burgess told Constable Fedirchuk that Mr. Creglia may have had a few drinks. He gave Constable Fedirchuk further information about Mr. Creglia.

[5] Mr. Creglia told Constable Fedirchuk that he did not need an ambulance although it appeared to him that Mr. Creglia had some injuries. He observed that Mr. Creglia was unsteady on his feet. He stumbled. He observed that Mr. Creglia had problems with his manual dexterity in opening his wallet. He also observed that Mr. Creglia had a strong odour of alcohol on his breath. He asked Mr. Creglia whether he had had anything to drink. He received a response. He noticed that Mr. Creglia had some injuries. He formed reasonable grounds to believe that Mr. Creglia was impaired. He arrested him for impaired driving.

[6] Constable Ennis was the booking officer. He observed that Mr. Creglia had a strong odour of alcohol. His eyes were red and glassy and he was slightly unsteady on his feet.

[7] Constable Choe was the breath technician. He took samples of Mr. Creglia’s breath at 2:10 am and 2:27 am. Mr. Creglia had a blood alcohol concentration (or “BAC”) of .155 and .137. Constable Choe also noted that Mr. Creglia’s speech was slurred. He formed the opinion that Mr. Creglia’s ability to drive was impaired.

[8] Mr. Creglia was charged with impaired driving and driving with a BAC of more than .80. The Crown called four witnesses: Mr. Burgess and Constables Fedirchuk, Ennis, and Choe. The Crown also filed an affidavit from Elizabeth Hird. Ms. Hird is a forensic toxicologist at the Centre for Forensic Sciences. She did not testify. She gave the opinion in her affidavit that Mr. Creglia’s projected blood alcohol concentration between 11:50 pm and 12:53 pm was 130 to 185 mg of alcohol in 100 ml of blood. She opined that:

… an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.

[9] Defense counsel at trial argued that Constable Fedirchuk violated Mr. Creglia’s Charter rights: the officer, he said, did not have reasonable grounds to arrest him. The investigation was hasty, he didn’t check to see whether alcohol or icy roads caused the accident, and the alcohol he smelled on Mr. Creglia was only an indication of consumption, not impairment. Only two minutes elapsed between Constable Fedirchuk’s arrival and the arrest. He called the investigation lazy and irresponsible. He did not look for alternative explanations for the accident. He also argued on the merits that Mr. Creglia was not impaired. He did not contest the “over-80” findings, only that the breath samples should have been excluded.

REASONS OF THE TRIAL JUDGE

[10] The trial judge delivered oral reasons for judgment at the end of the evidence and submissions. He began by summarizing the evidence of Mr. Burgess. He then summarized the evidence of Constable Fedirchuk. In the course of that summary he noted that Mr. Creglia’s counsel had:

… asked the Court to consider a breach of sections 8 and 9 of the Charter. If for no other reason, that included in the breach or implied in the breach, is the suggestion that the investigation was done hurriedly, and really there were no grounds to arrest him, from the perspective of counsel for the accused.

[11] The trial judge then noted that Mr. Burgess told Constable Fedirchuk what he had observed about Mr. Creglia. He correctly noted that an investigating officer may consider information provided by third parties when doing his or her investigation.

[12] The trial judge summarized Constable Fedirchuk’s observations of Mr. Creglia. He mentioned the officer’s observations of alcohol on Mr. Creglia’s breath, the unsteadiness on his feet, and the trouble with his manual dexterity. He again noted defence counsel’s argument that “how can anyone form the grounds to arrest somebody in two minutes”. He moved next to summarizing the officer’s account of the arrest, right to counsel, and transport to the station. He described the observations of Constable Choe, the breath technician.

[13] The trial judge certainly jumped around quite a bit. After summarizing the observations of the breath technician he went back to Constable Fedirchuk’s testimony. He set out the key points of the cross-examination. He then shortly summarized the evidence of Constable Ennis, the booking officer. He observed that Mr. Creglia smelled of alcohol, was unsteady, and his eyes were red and glassy. After that he went back to Constable Choe’s observations. He summarized them in detail. He noted Constable Choe’s observation that Mr. Creglia smelled of alcohol, his eyes were watery and bloodshot, and he had a flushed face and flushed eyes.

[14] The trial judge then set out defence counsel’s position:

It is submitted initially that the accused’s rights have been breached in these circumstances, that the officer, Fedirchuk’s, investigations were sloppy, simplistic in the sense of being conducted in perhaps two minutes. That he did not conduct a thorough enough investigation and therefore did not comply with his responsibilities, whether under provincial legislation or otherwise.

[15] The following paragraphs also jump around. The trial judge mentioned the Supreme Court of Canada’s decision in R. v. Storrey, [1990] 1 S.C.R. 241. He noted, correctly, that an officer must take into account all information, including information from third parties, and may disregard information that he or she considers unreliable.

[16] In the next paragraph, the trial judge mentioned “another case dealing with a similar context is the Court of Appeal decision of R. v. Bush” and the Supreme Court of Canada’s decision in R. v. Bernshaw, [1995] 1 S.C.R. 254. Both cases were on point: R. v. Bush, 2010 ONCA 554. The trial judge mentioned cases dealing with the question of reasonable grounds to arrest for impaired driving. Bush in particular was very much on point. In the following paragraph the trial judge comment on the meaning of reasonable grounds. He did not, at that point, indicate what he was doing about the Charter motion.

[17] The trial judge then moved on to the question of impairment in the next paragraph. He pointed out, correctly, that any degree of impairment from slight to great is enough to found a conviction. He correctly noted that in R. v. Letford (2000), 51 O.R. (3d) 737 (C.A.) the Court of Appeal found that breath readings cannot found a conviction in the absence of expert evidence. In the paragraph following that he noted the expert evidence from Ms. Hird. He read her statement opining that a person with the Mr. Creglia’s BAC would be impaired.

[18] In the next paragraph the trial judge stated:

The Court is not satisfied that there has been a breach of the Charter in these circumstances.

[19] The trial judge then moved on to a discussion of the elements of the offence of impaired driving, or impaired care and control. Whether Mr. Creglia had care and control of the vehicle was not an issue. The trial judge then described the elements of the offence. He did so correctly. In the next paragraph he discussed intention. He noted that it is difficult to know what is in a person’s mind. He further noted that a court must look at a person’s words and conduct. He noted that it is not an offence for a person to operate a motor vehicle merely after consuming alcohol. It is an offence to so while impaired.

[20] In the next paragraph the trial judge discussed what evidence the Court must consider to decide “an accused’s care and control”. Again, care and control was not an issue. Impairment was. Although the trial judge used the term “care and control” the evidence he discussed was directed to the issue of impairment.

[21] In the next two paragraphs the trial judge discussed R. v. Rhyason, 2007 SCC 39 and Letford, supra, again. I will have more to say about Rhyason later in these reasons.

[22] Finally, the trial judge stated that in all the circumstances he was satisfied that the Crown had made out its case with respect to the offences of impaired driving and “over 80”. He found Mr. Creglia guilty of impaired driving and “over 80” but stayed the “over 80” charge. He sentenced Mr. Creglia to a 13 month driving prohibition and a $1300 fine.

ANALYSIS

[23] There were two critical issues at trial: whether the officer had reasonable grounds to arrest Mr. Creglia; and whether he was impaired. Determining impairment is usually a matter of evaluating multiple pieces of evidence. A single piece of evidence is rarely conclusive. But the breath certificates were clearly proof beyond a reasonable doubt of “over 80”. If the Charter argument on the seizure of the breath samples did not succeed then a conviction would have followed virtually automatically.

[24] The trial judge dismissed the Charter argument. That, of course, led to a conviction on “over 80”. He also convicted Mr. Creglia of impaired driving.

[25] In his factum, the Appellant made two arguments: first that the trial judge did not provide sufficient reasons, thus preventing meaningful appellate review; and second, that the trial judge erred in dismissing the Charter argument. In oral submissions, Mr. Gourlay, his counsel, concentrated on the inadequacy of the reasons. That made sense. He conceded that the Crown’s case was strong on its face. He argued, however, that where the defence has brought into play real issues, then it is simply not enough to point to the evidence and say that the route to conviction was obvious.

[26] The issues can be framed this way:

(a) Did the trial judge provide sufficient reasons? (b) Were the reasons for conviction apparent from the face of the record? (c) Should the curative proviso apply?

(a) Did the trial judge provide sufficient reasons?

[27] Mr. Gourlay argues that the trial judge did not set out a “path to conviction”. He argues that the trial judge did not set out “why” he convicted: R. v. R.E.M., 2008 SCC 51 at paras. 17-18, 21. He does not dispute that the trial judge set out the facts and the law adequately but argues that what is missing is any analysis of the credibility of the witnesses, or application of the law to the facts. The trial judge, he says, simply states that facts and his conclusion. He also argues that where there are real issues in play, it is not enough to simply point to the record and say it is enough.

[28] I agree with Mr. Gourlay that the trial judge failed to set out “why” he convicted on impaired driving. He also failed to set out “why” he dismissed that Charter motion. Meaningful appellate review is not possible.

[29] A trial judge has a duty to give reasons. Those reasons must demonstrate the path taken by the trial judge through confused and conflicting evidence in order to arrive at a result: R. v. Sheppard, 2002 SCC 26 at para. 46. A trial judge must set out the “why” of how he or she got to a particular verdict: R. v. R.E.M., 2008 SCC 51 at para. 21. I say that while bearing in mind that a reviewing court must consider the busy and high-pressure atmosphere that trial judges face in the Ontario Court of Justice.

[30] Mr. Gourlay points to two cases where summary conviction appeal judges have, unfortunately, allowed appeals from this judge on similar points.

[31] In R. v. Tong, 2014 ONSC 1861 the appellant was charged with impaired driving and “over 80” while having care and control of a motor vehicle. The police found him standing beside a pick-up truck urinating at the side of the road. The lights of the truck were on and the engine was running. There was alcohol on his breath and his speech was slurred. He was not the registered owner of the truck and he did not have the keys in his possession. He was arrested. His BAC samples were .138 and .121. The trial judge accurately outlined the charges and the facts. He mentioned some issues that had nothing to do with the case. He noted the defence argument that the Intoxilyzer was not working properly because it had new software. He then simply announced that in the circumstances of the case he was satisfied that the appellant had been in care and control but not satisfied that the appellant had a BAC of over .80.

[32] My colleague Campbell J., the summary conviction appeal judge, noted that the trial judge outlined the basic facts and articulated the issues of the parties. The trial judge did not, however, analyze the evidence or the issues or resolve any of the credibility issues raised by the defence. He observed that there was no attempt to link any of the evidence to the issues and then to the conclusions. He found that the reasons were insufficient. Campbell J. found that he could not apply the curative proviso because it was not possible to remedy the deficiencies of the trial judge. He would have to substitute his own view of the case. Moreover, the Crown did not ask that the curative proviso be applied.

[33] In R. v. Barnes, 2015 ONSC 6901, the appellant was also charged with “over 80” and impaired driving. During a brief routine traffic stop a police officer arrested the appellant for impaired driving. The main issue was whether the police had reasonable grounds to arrest for impaired driving. There was a wrinkle to the case: the officer originally made a demand that the appellant provide a breath sample for an approved screening device. After four minutes the officer decided not to wait for the screening device to be brought. He arrested the appellant for impaired driving and made a demand for breath samples for the approved instrument.

[34] There were credibility and legal issues that had to be resolved in the case. My colleague Spies J. found that the trial judge simply did not do that. The trial judge reviewed the evidence, and reviewed the law on making an approved screening demand – an irrelevant issue. The trial judge drew some conclusions that neither Crown nor defence counsel could quite understand. Although the trial judge did not have to resolve every inconsistency, he was at least required to deal with the defence arguments. He did not do that. Spies J. noted the similarities between the trial judge’s reasons in Tong and his reasons in Barnes. She ordered a new trial. She did not apply the curative proviso (although the Crown asked). She was not satisfied that she could resolve the credibility and factual issues based on the record.

[35] Mr. Gourlay argues that the reasons in this case demonstrate the same failures that existed in Tong and Barnes. Regrettably, I agree. Reasons do not have to be without blemish. Judges are expected to be able to run a courtroom, ensure a fair trial, and deliver comprehensible reasons. Comprehensible reasons need not do more than resolve the competing issues by linking the evidence, the law, and the verdicts. Few judges have the clarity of a Learned Hand or the wit and wisdom of a Lord Denning; but that kind of rare brilliance is not required.

[36] I agree with my colleague Campbell J.’s comments in Tong at para. 38:

As I have indicated, reasons need not be a model of clarity or perfection. They need not address every issue and resolve every factual dispute. They need not articulate every applicable legal principle, nor express every factual inference and conclusion. But, as the appellate court jurisprudence reveals, reasons must address and resolve "the substance of the matter." The "foundations of the judge's decision" must be discernible from the reasons. The reasons must establish a "logical connection" between: (1) the evidence and the law; and (2) the verdict.

[37] As McLachlin C.J. stated in R.E.M., supra, relying on Doherty J.A.’s judgment in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), a trial judge need not expound on matters of law or evidence that are well-settled, uncontroversial, or accepted by the parties. A reviewing court must also be careful not to microscopically parse a trial judge’s words. A reviewing court must examine the whole of the trial judge’s reasons.

[38] The reasons in this case do not meet the Sheppard standard. I simply cannot say that the trial judge’s reasons for both the dismissal of the Charter motion and the conviction are set out in a manner where one could readily discern the “why”. The trial judge summarized the evidence. He set out the issues with reasonable clarity. He correctly set out the elements of the offence of impaired driving and noted the legal test set out in the cases accurately. He made reference to cases like Bush and Bernshaw, supra, and R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.). Those cases all applied. He did not however, make any link between the evidence, the legal principles set out in those cases and his conclusions.

[39] Problematically, the trial judge referred to an irrelevant issue – whether Mr. Creglia had care and control of the vehicle. That could be explained as a mere slip: Rhyason, supra, at paras. 9-11. The difficulty is that the trial judge made the reference at least twice. It is not clear to me whether he understood that care and control was not an issue. Even if the slip had occurred more than once, it would be far less troubling if it came in the context of reasons that were otherwise sufficient.

[40] It is also not clear what evidence the trial judge accepted in finding beyond a reasonable doubt that the accused was guilty of impaired driving. Was it the crash? The alcohol on his breath? The toxicology opinion? Or a combination of those things? Those questions could have been easily resolved. This case was very simple. There were four short Crown witnesses and no defence evidence. The Appellant was observed to be accelerating towards the apex of a curve on the highway late at night on a slippery road; he crashed into the guardrail; he slurred his speech; he smelled of alcohol; he admitted drinking earlier in the evening; he blew almost twice the legal limit (although the trial judge did not use that in convicting him of impaired driving); at least three witnesses saw him stumble; he needed to use the wall to hold himself up. The trial judge mentioned this evidence but did not take the next logical step and indicate which of it he accepted and which he did not.

[41] It is the same with the question of reasonable grounds to arrest. The trial judge correctly set out the test from Storrey, but he was required to determine whether the officer actually possessed subjective grounds to arrest. He was also required to determine whether those subjective grounds were objectively justified. The trial judge recited the evidence. It would have been a simple matter of tying it to those legal issues. He did not.

(b) Were the reasons for conviction apparent from the face of the record?

[42] As Binnie J. stated in Sheppard, at para. 46:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene.

[43] The second part of Sheppard requires a court to analyze whether it is plain from the record why an accused has been accused or convicted. “Plain from the face of the record” does not mean simply looking at the evidence and determining whether there was a basis for the verdict. That would require a reviewing court to re-weigh the evidence and make findings that the trial judge could have made. “Plain from the face of the record” means evaluating what the trial judge actually did based on the evidence and submissions. That could come, for example, in the course of submissions. I cannot say that it is plain and obvious from the record why the trial judge did what he did in this case.

[44] There were two substantive things that the trial judge had to decide: the Charter motion and the impaired driving charge. At first blush, it seems that the reasons for the dismissing the Charter motion can be teased out of the trial judge’s comments. That said, the dismissal of the Charter motion was intimately bound up in the conviction on impaired driving. At places in the judgment it is simply too difficult to determine whether the trial judge was dealing with the Charter motion or the impaired driving evidence. Under those circumstances I find it difficult to apply the second part of Binnie J.’s comment in Sheppard to either the Charter motion or the conviction on impaired driving.

[45] It is not that the Charter argument was particularly arguable. Respectfully, it bordered on frivolous. As one frequently sees in impaired driving cases, there was wholly unjustified inflation of language around arguably minor Charter violations – if they were violations at all. The high standards of outrage were hardly justified.

[46] The test for whether a police officer has reasonable and probable grounds to arrest is well-known and set out in Storrey, supra, at paras. 16-17, where Corey J. stated:

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest…

In summary then, the Criminal Code requires that an arresting officer must subjectively have [page251] reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[47] The reason why it only took Constable Fedirchuk only two minutes to form the grounds was not because the investigation was hasty. It was because the grounds were obvious. As Scott L.J. stated in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), as quoted in Storrey:

The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.

[48] Whether reasonable grounds exist is a “fact based exercise dependent on the circumstances of the case”: R. v. Rhyason, 2007 SCC 39, supra, at para. 19.

[49] The circumstances in this case were, in some respects, not unlike those in Rhyason, which the trial judge quoted. Rhyason had been drinking. He drove and killed a pedestrian. The arresting officer arrived at the scene and noted the dead body. He then walked up to Rhyason, who identified himself as the driver. The officer noted that Rhyason had bloodshot eyes, an unusually blank stare, blinked slowly, was shaking, and had an odour of alcohol on his breath. The officer arrested him for impaired driving causing death and made a demand for breath samples. At trial, Rhyason applied to exclude the breath samples on the basis that the officer did not have reasonable grounds to arrest. The trial judge, a majority of the Court of Appeal, and a majority of Supreme Court disagreed. In doing so, Abella J. for the majority noted that the trial judge relied on more than just consumption of alcohol for the finding that reasonable grounds existed. The trial judge in this case mentioned Rhyason.

[50] There is no doubt that the officer subjectively possessed reasonable grounds. He said that he felt that Mr. Creglia was impaired on scene at 1:55 am, and he said that he felt that Mr. Creglia was impaired at the station.

[51] As for the objective grounds, they seemed obvious: a one-car crash and the driver smelling of alcohol, slurring his speech, and stumbling around. There was more evidence of impairment than just consumption. The only example of further investigation that defence counsel at trial could argue was the officer’s failure to look in the car to see if there was an empty bottle of alcohol, in case there might have been a bolus drinking defence. That is not a serious example of further investigation that might have been done.

[52] Ultimately, however, I must come down on the side of finding that the reasons were insufficient from the record. That is because the trial judge was required to evaluate what Constable Fedirchuk had in mind when he arrested Mr. Creglia. He did not do that. The problem a reviewing court must grapple with is that it is unclear from the jumbled reasons what issues the trial judge was dealing with, and at one point. It is unclear how the trial judge was applying the law to the evidence because of the random nature of his observations. The trial judge failed in the same way with regard to the conviction on impaired driving. Instead of separating the issues and considering them in turn – the standard (although not required) form of judicial analysis – he literally jumbled the issues together. This is not a credibility case in the sense that the police officer’s honesty was attacked. There was, however, conflicting evidence that had to be resolved.

(c) Should the curative proviso apply?

[53] The Crown argues that I should apply the curative proviso. I do not think this is an appropriate case. If the trial judge had made a legal error that, if reversed, would have resulted in conviction on the evidence before him, I might view the matter differently. That is not the case here. I agree with my colleagues Campbell J. and Spies J. in Tong and Barnes, respectively.

DISPOSITION

[54] A new trial is required. Mr. Creglia is ordered to appear in 111 Court, Old City Hall, Toronto, on Monday July 10 to set a date for a new trial.

R.F. Goldstein J.

Released: June 21, 2017