COURT FILE NO.: CR-17-40000092-00AP

DATE: 20180509

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MEHNAZ HOUDI

D. Carbonneau, for the Respondent

E. Hilzenrat, for the Appellant

HEARD: 19 April 2018

s.a.Q. akhtar j.

[1] On appeal from the conviction entered on 6 July 2017 by Justice Jack Grossman of the Ontario Court of Justice.

FACTUAL BACKGROUND

Introduction

[2] On 26 March 2016, the appellant was seen driving a white Subaru northbound on the Don Valley Parkway close to the Bloor Street off-ramp. An on duty police officer, Police Constable Truong, noticed the car changing lanes, weaving from side to side, and driving at varying speeds. He followed the car until the Eglinton off-ramp and signalled the driver to stop.

[3] The appellant, the driver of the vehicle, was accompanied by a male passenger. When PC Truong approached the car, he could smell alcohol through the driver’s side window which was partly open.

[4] PC Truong asked the appellant to exit the Subaru and they walked to his police cruiser. As it was cold, PC Truong invited the appellant to sit inside but she chose not to do so. When informed that she was required to provide a breath sample, the appellant asked if she could politely decline. In response, PC Truong explained that if she did, she would be charged with refusing a breath demand.

[5] The appellant continued to converse with the officer asking to speak with her passenger and requesting water because she was thirsty. Another officer advised the appellant that the passenger was “fine,” and gave her water.

[6] The appellant provided two breath samples but both were too short - under 1.6 seconds - to obtain proper readings. After several demands and cautions, the appellant was arrested for refusing to provide a breath sample. She was given her right to counsel and subsequently released at the scene.

[7] The trial judge found that even though the appellant did not explicitly refuse to provide a sample, her conduct was obstructive, and designed to delay matters. According to the judge, it bespoke her real agenda: to avoid providing a breath sample.

[8] Accordingly, he found that the appellant had failed to comply with PC Truong’s breath demand without a reasonable excuse and convicted her.

The Grounds of Appeal

[9] The appellant appeals the conviction on the following grounds:

1. The trial judge erred in finding that the appellant’s refusal to provide a breath sample was unequivocal and the verdict was therefore unreasonable;

2. The judge misapprehended material parts of the evidence; and,

3. The judge erred in failing to consider that the appellant established a reasonable excuse because she did not introduce corroborating evidence.

THE APPEAL AGAINST CONVICTION

The Powers of the Appellate Court on Review

[10] An appellate court owes great deference to the trial judge on findings of fact. Although the appellate court may interfere the verdict rendered by a trial judge, it may only do so if it finds the verdict to be unreasonable.

[11] The test was recently set out in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9, as follows:

To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge…

[12] In Biniaris, at para. 37, the court identified the stage at which appellate intervention would be appropriate:

The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with the factual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

Unreasonable Verdict

[13] The appellant complains that the judge’s conclusion was unreasonable based on the following factors:

1. The judge failed to consider the fact that the appellant was not given a meaningful opportunity to provide a sample immediately prior to her arrest

2. The judge erred in finding the appellant’s conduct was designed to delay matters

3. The judge ignored the circumstances of the appellant’s apparent assent to the breath demand upon her arrest whilst the screening device and officer were available.

[14] There is no dispute between the parties that when determining the question of refusal of a breath sample, the totality of the evidence must be considered. This includes the words and conduct of the detained driver in the course of a breath demand: R. v. Moser (1992), 1992 CanLII 2839 (ON CA), 71 C.C.C. (3d) 165 (Ont. C.A.), at p. 176; R. v. Bijelic, 2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911 (S.C.J.), at para. 30; R. v. Porter, 2012 ONSC 3504, at para. 31; R. v. Pletas, 2014 ONSC 1568, at para. 67.

[15] With respect to mens rea, the Crown is not obliged to prove specific intent. In other words, the Crown need not show that there was an intention to deliberately cause the failure of providing a breath sample. All that is required is that the accused knew or was aware of the prohibited act: Porter, at paras. 33-37; Pletas, at para. 67; R. v. Kitchener, 2012 ONSC 4754, at para. 36.

[16] Finally, reasonable excuse is a defence that falls outside proof of the essential elements of the offence and falls at the feet of an accused to prove on a balance of probabilities: Moser, at para. 15-18; Pletas, at para. 67; Porter, at para. 38.

[17] Although the appellant appeals on the ground of unreasonable verdict, in many ways her argument is an invitation on review to re-litigate the findings.

[18] The appellant seeks to overturn the findings of fact on the basis that they are unreasonable. However, the in-car video demonstrates the basis for the trial judge’s conclusion that the appellant was delaying the investigation. The judge found that the appellant “displayed a challenging combatative attitude in an interruptive and obstructive way”. The video confirms this, with the appellant constantly talking, interrupting the officers and making the same demands repeatedly.

[19] For example, the video shows that the appellant asks for water approximately 14 times, claiming she is thirsty even though the officers testified that she was drinking water when she was stopped. Even though the appellant testified that the officers were aggressive, rude and dismissive, the video shows the opposite, justifying the trial judge’s findings on the point, as well as his diagnosis that the appellant was “playing games” in an effort to escape providing a breath sample.

[20] The evidence before the judge was that the appellant was asked to give a sample 25 times and cautioned on seven occasions. She attempted to do so twice and was given three “last chances”.

[21] Based on her total conduct, the judge’s finding that the appellant’s refusal was unequivocal is unassailable.

[22] The appellant argues that her request to provide a sample immediately after her arrest was a “last chance” defence that was ignored by the trial judge. The appellant relies on R. v. Domik (1979), 2 M.V.R. 301 (Ont. H.C.J.), affirmed [1980] O.J. No. 642 (C.A.), as authority for arguing that her post-arrest request to blow into the screening device cured any alleged act of refusal.

[23] Domik, in my view, did not lay down a hard and fast rule that an assent to a breath test made after being charged with refusal vitiates the earlier refusals. The court simply made clear that each case had to be examined on its own facts and that “the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations”: Domik, at para. 5.

[24] By comparison, in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 45, the court stated that “drivers upon whom ASD demands are made are bound by s. 254(2) to comply immediately— and not later, at a time of their choosing, when they have decided to stop refusing”.

[25] This case is more akin to that of R. v. McIntyre, [2005] O.J. No. 2927 (S.C.J.) where Dunnet J., on appeal, found that the trial record disclosed that the accused had multiple chances to provide a sample and had been given several warnings about being charged. Her Ladyship concluded that the trial judge’s finding that the accused was seeking to frustrate the sample taking procedure distinguished Domik.

[26] Similarly, in R. v. Khan, 2010 ONSC 3818, 97 M.V.R. (5th) 35, MacDonnell J. found that the appellant’s request to “try it again” after he had been charged for refusing to provide a breath sample, was not a change of heart or attitude but an invitation to the officer “to continue the same fruitless process”.

[27] Like the court in McIntyre and Khan, I find this appeal to be distinguishable from Domik.

[28] The trial judge considered the entire series of interactions between the appellant and the police. He took the view that, from the outset the appellant’s conduct was consistent with obstruction, and was not persuaded “that any further invitations to provide a breath sample would have rendered any different result”. Based on a review of the evidence, this conclusion was more than reasonable and does not warrant interference.

Misapprehension of Evidence and Application of W.D.

[29] The appellant avers that the trial judge misapprehended several aspects of the evidence and, at the same time, failed to properly analyse the evidence in accordance with the principles of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[30] A misapprehension of evidence involves an error about the substance of evidence or a failure to take into account evidence relevant to a material issue, or failure to give the appropriate effect to an item of evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 219; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 46.

[31] Not every misapprehension of evidence is fatal to a verdict. The misapprehension must be material and play an essential role in the reasoning of the trial judge, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2-6; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 5; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 19.

[32] With respect to findings of credibility, great deference is owed to the trial judge. An appellate court can only intervene in the face of these findings where it is shown that the finding was unreasonable, or based on a material misapprehension of the evidence: R. v. Cloutier, 2011 ONCA 484, 272 C.C.C. (3d) 291, at para. 80; R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at para. 7.

[33] I reject the appellant’s arguments for the following reasons.

[34] First, the appellant’s complaint that the trial judge concentrated solely on her out of court statements to the police is not borne out by the judgment: the judge considered the evidence as a whole and discounted the appellant’s trial testimony because of the officers’ testimony and the in car camera video.

[35] Second, as already noted, much of the appellant’s arguments are not examples of misapprehension of evidence but an attempt to re-litigate findings of fact upon appeal. For example, the judge’s findings on the appellant’s choice to remain outside the police cruiser, or his view that there was an inconsistency between the appellant suggesting her passenger had been drinking and then asking the police to see if he could drive are all credibility calls within the purview of the judge. There is nothing unreasonable about the findings he made.

[36] I take the same view about the judge’s findings about the characterisation of the officers’ behaviour as being polite and courteous. The reasons of the trial judge indicated that he did not believe the appellant’s version of events that she found them to be otherwise. Again, this was his call to make and, as I have already observed, his decision was reasonable based on the video evidence and police testimony.

[37] Finally, I disagree with the submission that the judge did not properly assess the evidence, or consider the possibility that it might raise a reasonable doubt. As the appellant concedes the trial judge was not required to recite the W. (D.). test. It is clear from a reading of his judgment that he applied the underlying principles to the facts. He considered the appellant’s evidence and rejected it, finding it did not raise a reasonable doubt. Finally, he made it clear that he accepted the evidence of the police officers and that he was satisfied beyond a reasonable doubt that the appellant was guilty of the offence.

[38] For these reasons, the ground of appeal also fails.

Did the Trial Judge Err in Finding No Reasonable Excuse?

[39] The appellant testified that she suffered from an upper respiratory infection and used an inhaler, antibiotics, and cough syrup to treat this condition. In giving evidence, she claimed that the inhaler might have been in her car but could not be sure. However, at trial she argued that her condition constituted a reasonable excuse for failing to provide a sample. The judge rejected this position.

[40] The appellant complains that the factors identified by the judge in rejecting her evidence on this point were not sufficiently appropriate to dismiss the defence. This ground of appeal must also fail.

[41] The trial judge comprehensively reviewed the appellant’s testimony about her condition and treatment. However he rejected her evidence for a number of reasons including:

• The fact that she did not tell the officers that she was having trouble breathing;
• There was no evidence that she was coughing or having trouble breathing on the video;
• She was able to fully converse with the officers without difficulty; and,
• She initially declined to sit in the police car despite the cold, which might have had deleterious effects on her condition.

[42] These reasons were fully capable of justifying the trial judge’s decision and, coupled with his findings that the appellant had intended to avoid providing a sample, were more than sufficient to justify a rejection of the defence.

[43] The appellant also submits that that trial judge erroneously imposed a burden on her to adduce evidence to corroborate her medical condition.

[44] I disagree. At no stage did the judge “require” the appellant to call corroborating evidence. He simply noted that there was no evidence, other than her bare assertion, to support her claim. He was entitled to consider the absence of evidence when weighing her credibility on this point.

DISPOSITION

[45] For the above reasons, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 9 May 2018

COURT FILE NO.: CR-17-40000092-00AP

DATE: 20180509

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MEHNAZ HOUDI

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.