Court File and Parties

Court File No.: 16-10000115-00AP Date: 20171120 Superior Court of Justice – Ontario

Re: R. v. David Persaud

Before: Justice S. Nakatsuru

Counsel: P. Locke, for the Appellant M. Sabat, for the Respondent

Heard: November 17, 2017

Endorsement

[1] Mr. Persaud was convicted of impaired driving. His trial was a blended trial and Charter application. The trial judge granted his s. 10(b) application and excluded the breath samples and the observations of Mr. Persaud at the police station. The judge dismissed the s. 8 application. He convicted Mr. Persaud. Mr. Persaud appeals this conviction.

[2] A couple of grounds of appeal can be dismissed summarily. There is no merit to the ground that this conviction was an unreasonable verdict. A further ground raised about the observations made by the arresting officer as being a disguised sobriety test is a ground that is being raised for the first time on appeal. I find that it is not right to do so on the circumstances of this case.

[3] However, I find merit to some of the other grounds raised by Mr. Persaud. They are: 1) the trial judge conflated the issues on the s. 8 Charter application and the trial proper; 2) his reasons for conviction were insufficient; 3) he improperly used evidence admissible only on the Charter application in convicting Mr. Persaud on the substantive charge of impaired driving.

[4] Let me start by saying I recognize that it is not always an easy task to deliver prompt and unassailable reasons, especially in a busy court such as the Ontario Court of Justice. Flawless reasons are not required. But there is a threshold that must be met. In this case, there were significant failings in the reasons. [^i]

[5] As a judge sitting on appeal, even if the reasons are deficient, I must also examine the submissions and the evidence in order to see if the trial should be overturned on this basis. In this case, while the judge did give a relatively lengthy oral judgment, at the end of the day, the reasons were confusing, contained errors, and ultimately cannot be sustained.

[6] One problem arose by the trial judge not keeping separate the issues on s. 8 application and the trial proper. When he began discussing the Charter issue, he properly recited cases that were relevant to this issue. Then he began to recite cases relevant to proof of impairment such as Stellato. Then without referring back to any findings or analysis of the Charter, in a brief paragraph he convicts Mr. Persaud of impaired driving. Although in his conclusion at the end of the judgment it is clear he did not grant the s. 8 application, he gave no reasons for it. Indeed, even though he referred to cases on this issue, it is as though he just skipped it and went straight to the trial conviction. I can see why the appellant argues he conflated the standards. It is hard for me to accept that a trial judge deemed to know the law could to do that but the structure and the penultimate paragraph are confusing enough to raise this possibility.

[7] I had asked counsel for the appellant that if Mr. Persaud was convicted of impaired driving then was it not obvious, despite the trial judge not properly dealing with it, that the indicia observed by the arresting officer was sufficient to establish reasonable and probable grounds for the arrest. If this was all there was to the appeal, I would not have granted it.

[8] However, there is more. The reasons given for convicting are confusing. The trial judge refers to the arrest, the caution, and the demand, as being relevant factors in meeting the ingredients of the charge. I cannot see the relevance of these factors. He also cryptically said that it was the indicia and the case law that established impairment. While I have dismissed the unreasonable verdict ground of appeal, the remaining evidence in this case is not overwhelming. This is so because the trial judge excluded not only the breath samples but all the police observations back at the police station. The indicia remaining were speeding in a construction zone and some minor physical manifestations by Mr. Persaud. But as pointed out by counsel, there were many other types of indicia commonly noted in such cases that were absent here. The final problematic aspect of the judge’s reasoning is his use of Mr. Persaud’s admission to the arresting officer that he had two drinks. This was properly admitted as evidence to determine whether there were reasonable grounds for arrest. It was not to be used for the trial proper. However, I agree with the appellant that the trial judge did so.

[9] When the judge was dealing with the issue of impaired driving being a general intent offence, he referred to the fact that there was no issue Mr. Persaud was driving a vehicle having consumed “at least two drinks” and that the accused could not say he did not intend to get into this condition. In addition, the judge misapprehended the evidence. The officer testified that Mr. Persaud admitted he had two drinks. The officer did not testify he was told by the appellant that he had “at least” two drinks. While the Crown argued that if this was an error, it was a harmless error since there was no issue that the accused had in fact been drinking given the smell of alcohol on his breath. I agree if this stood alone, a new trial should not be ordered. However, when I assess the totality of the judge’s reasoning along with counsel’s submission and the evidence, it would be a miscarriage of justice to permit the conviction to stand.

[10] At the end of the day, I find that I would have to do too much reconstruction of the edifice that founded the conviction for it to remain standing.

[11] A new trial is ordered on the impaired driving charge. The Crown did not appeal his acquittal on the over 80 charge. Mr. Persaud is therefore ordered to attend to set a date in the Ontario Court of Justice on December 5, 2017, Courtroom 111, 60 Queen Street West, Toronto, at 9 a.m.

Nakatsuru J. Date: November 20, 2017

Footnotes

[^i]: Indeed the trial judge’s reasons on the s. 10(b) issue which was in the appellant’s favour was even more significantly flawed.