Court File and Parties

COURT FILE NO.: SCA 9146 DATE: 2018-07-05 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: HER MAJESTY THE QUEEN, Respondent AND: KAREN NIRVANA SINGH, Appellant

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: Jill R. Presser and Cate Martell, Counsel for the Appellant Anita Etheridge, Counsel for the Respondent

HEARD: May 18, 2018

Endorsement

[1] The Appellant appeals against her conviction for failing to provide a breath sample into an Approved Screening Device contrary to section 254(2)(b) of the Criminal Code, entered by the Honourable Justice Allen of the Ontario Court of Justice at Kitchener on October 28, 2016.

[2] The Appellant cites three grounds for her appeal:

(i) that the trial judge erred in law by relying on utterances that the Appellant made at the roadside (during the time that her right to counsel was suspended) for the purpose of assessing her credibility at trial;

(ii) that the trial judge misapprehended the substance of the Appellant’s evidence by finding, contrary to the evidence, that the Appellant had no difficulty hearing the trial proceedings; and

(iii) that the verdict was unreasonable because there was no evidence that the Appellant unequivocally refused to provide a breath sample.

Background

[3] Ms. Singh came to the attention of the police on the early morning of April 9, 2016 when she drove her car from the 401 to a Tim Horton’s parking lot in Kitchener. She approached two men sitting in the only other car there. She was mumbling but said someone was in her car and she needed help. She told the men she was in danger. She told the men that she would give them all her money to drive her 70 kilometres … to any destination. And she tried to get into the strangers’ car. So those men called 911 because she needed help. She told them she needed an ambulance.

[4] And the police came. The strangers had checked the Appellant’s car and did not find anybody in it.

[5] The men saw no physical signs that she was hurt. And she was not speaking clearly but not slurred.

[6] While there were no obvious signs of impairment, Mr. Popovicia did testify that she was stumbling. And when police arrived the Appellant insisted someone was in her car. But no one was in her car.

[7] During his interaction with the Appellant on this score, Cst. Shipp detected the odour of alcohol on her breath. And at 6:08 a.m. the officer made his first breath demand.

[8] To that unequivocal demand, the Appellant said she wanted to call her lawyer. A couple minutes later the officer made a second demand to which the Appellant said “NO” and again asked to call her lawyer.

[9] Then the officer explained that it was a legal demand with which she was required to comply and re-read the demand and the Appellant said she was not going to provide a sample, because she does not trust the cops. During this whole exchange with Cst. Shipp, she didn’t complain of any injuries or medical conditions. And he denied in Cross-Examination that the Appellant told him she was having trouble hearing some of the words he was saying.

[10] So at 6:18 a.m. Cst. Shipp arrested the Appellant.

Discussion

The Grounds

(i) That the trial judge erred in law by relying on utterances that the Appellant made at the roadside for the purpose of assessing her credibility at Trial.

[11] I agree with the Appellant that nothing that she said at the roadside was admissible for the purpose of assessing her credibility. This proposition comes from R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (CA) upon which the Appellant heavily relies to argue that because this Trial Judge used the Appellant’s statements about her drinking / not drinking to impeach her testimony that this error alone is enough to end the inquiry and to grant the appeal. I disagree.

[12] The nub of the Trial Judge’s reasoning is found in the final two paragraphs of his oral judgment. These show no real nexus to any such roadside statements or their use for impeachment purposes.

[13] In my view, this case is nothing like R. v. Rivera. The issue was not about whether the Appellant had been drinking, but whether, after a proper unequivocal demand had been made, she had unequivocally refused to provide a breath sample.

[14] The Trial Judge’s reasons, though curt are crystal clear. I find no error here.

(ii) That the Trial Judge materially misapprehended the substance of the Appellant’s evidence, by finding, contrary to the evidence, that the Appellant had no difficulty hearing the trial proceedings.

[15] The trial judge deals with the issue of the Appellant’s hearing on page 118 of his Reasons.

[16] It seems clear on the evidence of all the other witnesses that on the morning of her arrest, the Appellant had never expressed any concern about her hearing. And it seems to me that the evidence of Cst. Shipp especially, shows a normal back and forth behaviour pattern in the case of the three demands and the three refusals.

[17] While the Trial Judge found the evidence of the accused unusual “and to a very large extent outside my experience” – a conclusion I would certainly adopt, I am not of the view that he materially misapprehended the Appellant. The key period for consideration is between the time of the first demand and the Appellant’s arrest. I would reject this ground of appeal.

(iii) That the verdict was unreasonable because there was no evidence that the Appellant unequivocally refused to provide a breath sample.

[18] I would reject this ground of appeal out of hand.

[19] There was abundant evidence of more than one unequivocal refusal. The Appellant agreed that she refused because she didn’t feel she had to or because she didn’t trust the cops.

[20] There is no question that the Appellant refused.

[21] The Appellant has not demonstrated that the verdict is one that no judge or jury, properly instructed, could reasonably have rendered in the circumstances. The evidence on a whole is capable of supporting the Trial Judge’s conclusion that the Appellant was guilty.

[22] I would therefore dismiss the appeal.

P.J. Flynn J. Date: July 5, 2018