Her Majesty the Queen v. Wayne Pawluk, 2017 ONSC 386
Court File and Parties
COURT FILE NO.: CR-15-3539-AP DATE: 20170118 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Appellant – and – WAYNE PAWLUK Respondent
Counsel: Adam S.J. Campbell, for the Appellant Crown Patrick J. Ducharme, for the Respondent
HEARD: January 12, 2017
ROGIN J.
Overview
[1] The respondent had been to a football game in Detroit, Michigan, with a friend. He and the friend testified as to the alcohol consumption of the respondent. The respondent dropped his friend at home, stayed for a while and then attempted to make his own way home.
[2] On slippery roads, he ran into the back of Ms. Mendoza’s vehicle forcing it into Ms. James’ vehicle. The participants moved their respective cars off the road to a nearby parking lot. Ms. Mendoza and Ms. James claimed the respondent was “drunk”.
[3] None of the Crown witnesses could accurately assess the time of the accident. On the available evidence before him, the learned judge gave the benefit of the doubt to the respondent and appeared to decide the accident could have happened no later than 5:13 p.m.
[4] With respect to the charge of operating a motor vehicle while his ability was impaired, the learned trial judge acquitted the respondent. His reasoning was that the Crown had not proved impairment beyond a reasonable doubt.
[5] With respect to the charge of exceeding the breathalyzer, the learned trial judge also acquitted the respondent. In effect, he found that the Crown had not proven the time of the accident. He appeared to find that the latest the accident could have happened was 5:13 p.m. As the breath samples were not taken until 7:24 p.m. and 7:45 p.m., the learned trial judge found that they were not taken within the two hour period mandated by s. 258(1)(a) of the Criminal Code. He therefore refused to apply the presumption of identity and acquitted the respondent.
[6] The Crown appeals and advances the following three (3) arguments:
The learned trial judge failed to take into account the evidence of Ms. Mendoza and Ms. James as to whether the respondent’s ability to drive a motor vehicle was impaired by the consumption of alcohol.
The learned trial judge erred in failing to accede to the suggestion, that the respondent should be convicted of the included offence of having care and control of his vehicle while his ability to drive was impaired. He makes the same argument with respect to the charge of exceeding the breathalyzer.
The learned trial judge erred in law in failing to apply the presumption of identity in s. 258(1)(c) of the Criminal Code.
[7] I will address each issue as it arises.
Issue #1 – Failing to take into account the evidence of Ms. Mendoza and Ms. James
[8] I reject this ground of appeal. While it is accurate to say that the learned trial judge did not consider in detail the evidence of Ms. James and Ms. Mendoza that the respondent was “drunk”, it is not fair to say that he did not consider that evidence.
[9] In dealing with other evidence of Ms. Mendoza, as to the movements of the Pawluk vehicle before the accident, the trial judge rejected her evidence. He also accepted the evidence of Mr. Pawluk as to how the accident happened.
[10] A trial judge does not have to address every bit of evidence in his judgment. He only needs to show how he arrived at his conclusion.
[11] It is clear that he put no faith in the evidence of either Ms. Mendoza or Ms. James, as they each made the conclusory statement that the respondent was “drunk”. Neither Ms. Mendoza nor Ms. James testified to any symptoms which would support their conclusion. The trial judge did mention that Ms. Mendoza considered the respondent to be drunk. But, he in effect said that her observations were consistent with consumption not impairment.
[12] He also accepted the respondent’s explanation, that what the Crown referred to as post-offence conduct did not refer to the charge of impaired driving, but referred to possible insurance implications to the respondent.
Issue #2 – Failing to convict the respondent of the included offence of care and control
[13] The appellate Crown, who was also the trial Crown, was faced with a dilemma. The original officer on the scene was not called as a witness on the trial. Accordingly, only Officer Miles, who was the breathalyzer technician, testified. Officer Miles was also on scene, but he did not arrive on scene until 6:03 p.m.
[14] Accordingly, he had no admissible evidence as to what time the accident happened.
[15] The Crown, realizing that it could not establish the time of the actual accident, argued at trial that Officer Miles found the respondent in the driver’s seat at 6:03 p.m. and that the two hour time period, under s. 258(1)(c), should start at 6:03 p.m., not the actual time of the accident. The learned trial judge addressed this submission and rejected it.
[16] In my view, the learned trial judge was absolutely correct rejecting this submission, as it totally changed the particulars of the offence that the respondent faced at the time of the trial.
[17] On a fairness basis, the respondent went into the trial facing an allegation that at the time he was driving his motor vehicle – that is, the time of the accident – he was breaking the law.
[18] It is totally unfair for the Crown to change the case after the evidence has been heard and force the respondent to face a totally different charge, namely the charge that he was driving or in care and control at a time much later than originally alleged.
[19] This does not detract from the fact that care and control can be included in impaired driving. It simply says that the Crown must prove the charge it originally laid.
[20] I therefore reject this ground of appeal.
Issue #3 – The learned trial judge failed to apply the presumption of identity in s. 258(1)(c)
[21] For the same reasons that I agree with the trial judge on the Crown’s submission on count two, I absolutely agree with him on this submission. I reject it.
[22] The learned trial judge dealt with this issue at pages 9, 10 and 11 of his Reasons for Judgment. I can find no error in his analysis.
[23] On a global basis, the learned trial judge quoted the authority of R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). One of the propositions of Lifchus is that a reasonable doubt can arise from a lack of evidence. In my view, the learned trial judge properly applied Lifchus because of the absence of the first police officer on the scene.
Conclusion
[24] In the result, the appeal is dismissed.
“Original signed and released by Justice S. Rogin” Steven Rogin Justice Released: January 18, 2017