Court File and Parties

COURT FILE NO.: 1014/14 DATE: 20171116 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Roumen Marinov Applicant

COUNSEL: R. Griffin, for the Crown G. Lafontaine, for the Applicant/Appellant

HEARD: June 12, 2017

WOODLEY, J:

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] This is an appeal by the accused, Roumen Marinov, from his conviction for Operating a Motor Vehicle with Over 80 mgs of Alcohol in 100 ml of Blood and Impaired Operation of a Motor Vehicle, contrary to ss. 253(1)(a) and (253(1)(b) of the Criminal Code of Canada.

[2] In accordance with the Kienapple principle, the conviction on the Impaired Driving count was conditionally stayed.

Background

[3] The Appellant’s trial proceeded before the Honourable Justice R. Graydon of the Ontario Court of Justice in Lindsay on October 29, 2015.

[4] His Honour Justice Graydon convicted the Appellant of both charges and granted a conditional stay on the Impaired Driving count. The Appellant was fined $1,600.00 and prohibited from operating a motor vehicle for one year.

[5] The Appellant appeals his conviction alone.

Facts

[6] On August 25, 2014, Ontario Provincial Police Officer Jonathan Perrin was working out of the City of Kawartha Lakes Detachment in a general uniform capacity, travelling southbound on Highway 35 at approximately 7:32 p.m.

[7] Officer Perrin observed a motor vehicle, being a Toyota Tundra, travelling southbound directly in front of his car. The vehicle was travelling at a slow speed (60 km in the 80 km/hour zone) and was swerving. Officer Perrin followed the vehicle for approximately one kilometer southbound on Highway 35, from about three car lengths behind.

[8] On three separate occasions the Officer witnessed the Appellant’s vehicle passenger wheel swerve over the white fog line and onto the shoulder. There was no reason for this to happen because the roads were dry. The weather was good.

[9] The Officer stopped the Appellant’s vehicle and spoke to him briefly. The Officer requested the Appellant’s driver’s license, ownership, and insurance.

[10] During his conversation with the Appellant, the Officer noted a strong odour of alcohol on the breath of the Appellant. The Officer testified that the Appellant’s eyes were glassy, that they were slightly bloodshot. His speech was slow, somewhat slurred. The Appellant turned his head away as he spoke to the Officer.

[11] The Officer asked if he had consumed alcohol today and the Appellant advised “two beers”.

[12] The Officer testified that the Appellant’s words were long and drawn out although there was nothing in his notes to confirm this observation.

[13] Officer Perrin testified that after his conversation with the Appellant, he formed reasonable grounds to believe that the Appellant was operating the motor vehicle while impaired by alcohol.

[14] Officer Perrin arrested the Appellant for operating a vehicle while impaired by alcohol, at 7:35 p.m. He then asked the Appellant to exit the vehicle.

[15] Officer Perrin testified that as soon as the Appellant exited his vehicle he was unsteady on his feet and the Officer had to support him with his arm while walking to the police cruiser.

[16] The Officer asked the Appellant to accompany him behind the Appellant’s truck to get off the road out of traffic. Once behind the truck, the Officer handcuffed the Appellant.

[17] The Officer’s notes did not indicate trouble walking until after the Appellant had been handcuffed at the rear of his truck.

[18] The Officer testified that the walk back to the cruiser was a slow process as the Appellant was very slow and unsteady on his feet.

[19] The Officer testified that he was “almost holding up” the Appellant. The Officer’s notes, however, indicate that the Appellant was “leaning on [the officer] for some support”.

[20] At 7:41 p.m., the Officer read to the Appellant his rights to counsel from a card. At 7:42 p.m. he read the caution from a card. At 7:44 p.m., he read the breath demand. He read all of the above from his OPP card.

[21] When asked if he wished to speak to a lawyer the Appellant responded “I don’t know”. The Officer testified that he did not interpret this response as having asserted his right to counsel, nor indicating that he wanted to speak to a lawyer.

[22] The Officer explained to the Appellant what duty counsel is, to which the Appellant responded “okay”. At 7:49 p.m. the Officer transported the Appellant to the City of Kawartha Lakes OPP Detachment.

[23] The Appellant arrived at the Detachment at 8:20 p.m., taking the most direct route, not encountering any delays en route.

[24] Once in the booking room, the Officer placed a call to duty counsel at 8:25 p.m. Duty counsel returned the call at 8:37 p.m.

[25] At 8:40 p.m. the Appellant spoke with duty counsel, speaking on the phone with them until 8:46 p.m. At that time the Appellant was handed over to Officer Munro, a qualified breath technician. Officer Munro lodged the Appellant back into the cell when he completed the breath tests.

The Test on a Summary Conviction Appeal

[26] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:

(a) The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

(b) The judgment of the trial court should be set aside on the ground of wrong decision on a question of law; or

(c) On any ground there was a miscarriage of justice.

[27] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, [1987] 2 S.C.R. 168 at 185 as follows:

… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[28] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to a judge sitting at trial without a jury. (See R. v. Biniaris, 2000 SCC 15 at para 37.)

[29] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial Judge’s decision (See R. v. B. (R.H.), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (See Francis v. R. [1994] S.C.C.D. 5065-02; R. v. Yebes, supra).

[30] An appeal court is not entitled to retry the case de novo on the transcript.

[31] The issue before me is whether, on the whole of the evidence adduced at trial, the verdict is one that the trial Judge, acting judicially, could reasonably have rendered.

[32] If this threshold is met, this court is not permitted to substitute its view for that of the trial Judge or to allow any doubts it may have to persuade it to order a new trial. (See R. v. Burns, [1994] 1 S.C.R. 656, at para 14.)

[33] Reasonable differences of opinion are not reversible on appeal. As set out by the Supreme Court of Canada in R. v. Biniaris, 2000 SCC 15, at para 24:

Triers of fact, whether juries or Judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues.

[34] More recently in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R., 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.

[35] The trial judge has the unparalleled advantage of seeing and hearing the evidence of witnesses. It has been repeatedly affirmed that appellate courts should show great deference to the trier of fact with respect to credibility findings. (See R. v. W.R., [1992] S.C.J. No. 56 (S.C.C.), at para 20.)

[36] Unless the record reveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, there is no basis for appellate intervention.

Issue #1: Did the trial Judge err in ruling that the breath tests were conducted “as soon as practicable”?

[37] This ground relates only to the over 80 conviction.

[38] The legal interpretation of the “as soon as practicable” requirement is a question of law that is subject to appellate review on a correctness standard. The application of the legal standard to the facts of an individual case, however, involve factual determinations that are subject to review on the standard of “palpable and overriding error”.

[39] Section 258(1)(c)(ii) of the Criminal Code directs that breath samples are taken “as soon as practicable” after the time when the offence was alleged to have been committed, and in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken.

[40] The Appellant submits that the case law requires compliance with the statutory regime must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.

[41] The Appellant further submits that the Crown must meet this statutory requirement beyond a reasonable doubt.

[42] The Appellant asserts that if the circumstances of a particular case do not show that it was reasonable to take the time to contact duty counsel, then provided the delay is of more than a very minor nature, the tests will not have been administered as soon as practicable. (See R. v. Davidson, [2005] O.J. No. 3474 (Ont. S.C.J.) at para 19).

[43] In this regard the Appellant submits that the trial Judge’s consideration of whether the Appellant waived his right to counsel when he replied “I don’t know” constitutes a reversible error. The Appellant submits that the answer “I don’t know” coupled with the Officer’s evidence that he did not consider this answer to be indicative of asserting a right to counsel ought to have been dispositive of the issue of right to counsel being requested.

[44] The Appellant further submits that when the Officer referenced his conversation with the Appellant when he explained what duty counsel is and the Appellant answered “okay” and this answer was recorded in his notes cannot be credibly believed to be a statement that “I would like to speak to duty counsel”.

[45] The Appellant submits that when dealing with the issue the trial Judge erroneously conducted an analysis of whether this further statement “okay” amounted to a clear unequivocal waiver, contrary to the court of Appeal’s decision in R. v. Owens, 2015 ONCA 652. The Appellant submits that the statement “okay” cannot reasonably be believed to have taken place, and this is again dispositive of the issue of whether the Appellant’s right to counsel was asserted in the first place.

[46] The Appellant submits that the trial Judge committed two reversible errors. First, in not dealing with the Court of Appeal’s decision in Owens, supra, at para 26, which the Appellant claims would be dispositive of the issue without resort to an analysis of waiver. Second, by considering as evidence a statement attributed to the Appellant without any correctly conducted analysis as to the officer’s reliability and credibility in light of his poor note-taking and thereby using that evidence in an analysis of waiver (that ought not have been conducted in any event).

[47] As a result, the Appellant submits that the time period when the Officer placed the phone call to duty counsel, waited for the call back, and then made the Appellant speak to that counsel, was not a reasonable use of time. Consequently, the Appellant submits the breath tests were not conducted in strict compliance with the Criminal Code in that they were not done as soon as practicable. As a further consequence, the Crown, not having provided an expert report, is not entitled to the presumption of identity from s. 258(1)(c).

[48] In my view, the trial Judge made no error in law nor did he make a palpable or overriding error of fact with respect to his ruling that the breath tests were conducted “as soon as practicable”.

[49] In a case that turns on credibility the trial judge is in a unique position to see and assess the witness. He must direct his mind to the question of whether the evidence, as a whole, establishes the guilt of the accused beyond a reasonable doubt. (See R. v. Dinardo, 2008 SCC 24 (S.C.C.) at para 23.)

[50] The trial Judge properly set out the tests: “Has the Crown satisfied me beyond a reasonable doubt with respect to the “as soon as practicable test”? “Have they satisfied me on the balance of probabilities that Officer Perrin had reasonable grounds to arrest Mr. Marinov?”

[51] The trial Judge correctly outlined the legal principles, set out by the Ontario Court of Appeal in R. v. Vanderbruggen, [2006] O.J. No. 4717 (Ont. S.C.J.), at para 14, that “as soon as practicable” means that the tests were taken within a reasonably prompt time under all the circumstances, focusing on whether the officer act “reasonably while not giving unreasonable priority to the other tasks”.

[52] I reject the Appellant’s argument that the trial Judge’s examination of whether the accused waived his right to counsel was dispositive of the issue and the trial Judge should not have embarked on an analysis of whether the accused’s statement “okay” meant that he wished to speak to duty counsel. The Appellant’s argument and reliance upon Owens conflates the issues.

[53] The trial Judge appropriately focused on the correct legal principles and applied the correct legal test including Justice Campbell’s “as soon as practicable” found in R. v. Kusnir, [2002] O.J. No. 10.

[54] The appeal with respect to the Over 80 conviction is dismissed.

Issue #2: The Officer’s Note-Taking

[55] The Applicant raises issues with the Testifying Officer’s note-taking, not as a ground of appeal on its own, but as it pertains to each of the grounds of appeal.

[56] The Appellant claims that Officer Perrin seemed unable to appreciate the importance of adequate note-taking ability for the criminal court process.

[57] The Appellant states that the trial Judge was alive to the issues with Officer Perrin’s notes – and explicitly stated such when he cut off counsel’s cross-examination on the subject.

[58] The Appellant submits that the trial Judge erred in his analysis on the issue of the note-taking. The Appellant submits that the trial Judge repeatedly made reference to external factors that did not have a bearing on the reliability of the Officer’s recollections, in an effort to buttress the Officer’s viva voce evidence that the Appellant claims often departed from the material that was actually in his notes and from his earlier testimony as well. The Appellant submits that this reliance on external factors is not what the Superior Court of Justice proposed as factors to be considered in assessing an officer’s reliability in light of missing notes regarding important observations.

[59] The Appellant submits that the trial Judge erred in his credibility and reliability assessments of the only testifying Officer. This approach is alleged to have had a corresponding impact on the other findings that the trial Judge made, all in reliance of his finding the Officer’s testimony credible.

[60] I have reviewed and considered the Appellant’s objections to the trial Judge’s assessment of the Officer’s note-taking, his reliance upon external factors, and his assessment of the Officer’s credibility and reliability.

[61] I see no merit to the Appellant’s objections.

[62] The trial Judge considered the evidence of the Officer and in particular considered the Officer’s note-taking entries at length. The trial Judge properly assessed the Officer’s constitutional obligation to make sufficient notes on material topics that he is required to provide evidence for at trial. The trial Judge further specifically considered the Officer’s errors regarding his obligations regarding note-taking and weighed and considered how such errors effected his credibility and reliability. The trial Judge very correctly noted that the “discretion lies in the trier of fact to accept some, all, or none of the evidence of any witness”.

[63] The trial Judge reviewed the elements of the Officer’s evidence and accepted what he felt was properly noted or otherwise corroborated. In assessing credibility and reliability the trial Judge considered other evidence available to him. It was open to the trial Judge to find that certain evidence noted by the breath technician corroborated the testimony of the Officer. There was no palpable or overriding error and no error in law in the trial Judge’s findings.

[64] As for the trial Judge’s assessment of the credibility of the Officer and his testimony, the trial Judge had the advantage of seeing and hearing the evidence of the Officer. The trial Judge was critical of the Officer’s note-taking practices in the present case but determined the issues on the basis of the whole of the evidence before him. There was no palpable or overriding error and no error in law in the trial Judge’s findings.

Issue #3: Did the Trial Judge Apply the Correct Standard of Proof for the Conviction on the Impaired Driving Count?

[65] The Appellant submits that the trial Judge erred in finding reasonable and probable grounds to arrest and/or make a breath demand as determinative of the guilt/innocence question.

[66] The Appellant submits that the trial Judge took the reasoned analysis of Justice Andre on the topic of reasonable and probable grounds (on the part of the Officer) and equated it to an analysis of proof beyond a reasonable doubt of guilt for an impaired driving offence. In doing so, the Appellant argues, he committed a reversible error.

[67] Finally, the Appellant submits that in an analysis of the evidence for the impaired driving offence of the standard of “beyond a reasonable doubt” most of the indicia referred to by Officer Perrin was made prior to the arrest – and even if believed – are equivocal in nature and not sufficient to ground a conviction of impaired operation.

[68] The Crown notes that as the conviction of Impaired Driving was conditionally stayed, the second ground of appeal with respect to the standard of proof applied to the Impaired Driving conviction only becomes engaged if this court finds that the Over 80 conviction should be overturned.

[69] As noted above, I have dismissed the appeal relating to the Over 80 conviction.

[70] To ensure a fulsome record, I will review this ground of appeal, despite the dismissal of the appeal of the Over 80 conviction.

[71] I see no merit to this ground of appeal and would dismiss it entirely.

[72] The trial Judge correctly recited the differing standards of proof required to be proven by the Crown relating to the Officer’s “reasonable and probable grounds for arrest” and to establish that the tests were taken “as soon as practicable”. The trial Judge focused on these issues throughout his judgment.

[73] When the entire decision is reviewed and fully considered, it is apparent that the trial Judge considered all of the evidence submitted at trial, reviewed and critiqued the evidence of the Officer, the officer’s notes, and the evidence obtained through the breath technician and the Alcohol Inference Report. The trial Judge was thoughtful in his consideration and appreciation of the evidence.

[74] Throughout the Judgment, the trial Judge exhibits an excellent working knowledge of the law as it relates to the issues in dispute.

[75] Although the trial Judge did not expressly state his knowledge and application of the requisite standard of proof for conviction for Impaired Driving, the Appellant’s counsel, at p. 82 of the transcript, noted “With respect to the issue of impairment…the officer was not a witness whose evidence Your Honour should find satisfies Your Honour beyond a reasonable doubt. He was looking right at his notes where it says “slightly slurred” which he turned into “somewhat slurred”. He never did have in his notes – my friend said well he had “unsteady on his feet” somewhere.”

[76] The trial Judge responded to Appellant counsel’s submissions as follows: “Not much difference between “slightly” and “somewhat”. That’s a distinction without a difference”.

[77] When the Judgment is read in its entirety the trial Judge addresses the very issues raised by the Appellant’s counsel dealing with the proof beyond a reasonable doubt, note-taking and credibility of the Officer and most specifically with the “slurred” and the “balance” issues.

[78] As noted by R. v. Stellato, [1993] O.J. No. 18 (Ont. C.A.), to establish impairment beyond a reasonable doubt the Crown need only prove “any” degree of impairment. Even slight impairment is sufficient.

[79] The trial Judge made many findings of fact that qualify as “any” degree of impairment. The trial Judge’s failure to specifically reference the standard as “beyond a reasonable doubt” has not resulted in any miscarriage of justice.

[80] Judges are presumed to know the law. The trial Judge in this case evidenced his expansive knowledge of the law throughout the Judgment. The trial Judge reviewed, critiqued and tested the evidence.

[81] Having regard to the evidence and the totality of the trial Judge’s reasons, I hereby find that the constellation of factual findings supported a conviction for Impaired Driving on the “beyond a reasonable doubt” standard.

[82] The appeal with respect to the Impaired Driving offence is dismissed.

Conclusion

[83] For the reasons given, the appeal is dismissed.

Justice S. J. Woodley Released: November 16, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Roumen Marinov Applicant REASONS FOR JUDGMENT Justice S.J.Woodley Released: November 16, 2017