COURT FILE NO.: CR-17-401-00AP DATE: 20180928

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN SARA STACKHOUSE, for the Respondent/Crown Respondent

• and -

ATHANASIA AMANATIDIS-PALASKAS KAITLIN SOYE, for the Appellant Applicant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable D. McLeod, dated February 23, 2017]

DURNO, J.

[1] The appellant was charged with driving having consumed excess alcohol. An officer testified that he saw her driving. The appellant testified that she was not driving when the car was moving although she switched seats with the driver after they were stopped. A defence witness testified that very shortly before the appellant was stopped, the car’s owner was driving.

[2] The trial judge disbelieved the appellant, convicted and imposed a $1,000 fine and a 12 month Criminal Code driving prohibition.

[3] Ms. Amanatidis-Palaskas appeals the conviction contending:

1. The reasons are inadequate and do not permit appellate review,
2. The trial judge failed to provide reasons for his finding that the appellant was driving,
3. The reasons do not state whether the appellant was convicted of driving or having care or control having consumed excess alcohol,
4. The trial judge erred in applying only the first of the three prongs in W.D.
5. The trial judge failed to address the appellant’s application to admit her statement to the Intoxilyzer operator on a substantive basis pursuant to R. v. Edgar, 2010 ONCA 529 and R. v. Laird, 2015 ONCA 414.

[4] The Crown submits that while the reasons are not fulsome, they are adequate. When viewed in the context of the trial and submissions, it is apparent why the appellant was convicted. The trial judge did not commit a reversible error.

[5] For the following reasons, the appeal is allowed and a new trial ordered.

The Trial Evidence

[6] On November 1, 2014, the appellant and Angelo Zachos met in person for the first time after meeting earlier that week on the internet. Zachos drove the appellant in his car to the 52nd Street Bar and Grill in Brampton. As they drove into the parking lot at 10:45 pm, Peel Regional Police Constable Nicholson stopped Zachos, made a roadside breath demand that resulted in a “warn” reading and gave him a three-day driving suspension.

[7] The appellant and Zachos went into the bar where they socialized and drank for several hours. While there, they met Ibrahim Ergut who testified he had two beers at the bar.

[8] The appellant and Zachos left the bar shortly after 2:00 a.m. The appellant testified that Zachos got into the driver’s seat and she got into the passenger’s seat. Ergut was outside the bar talking to a woman when they left and testified that the appellant was the passenger when they left the bar. There was a conflict between the appellant and Ergut’s evidence as to how long she sat in Zachos’ car before it left. Ergut said the couple were talking to each other as they left the bar, got into Zachos’ car and left. The appellant said they sat in Zachos’ car for a few minutes talking before they left. They got into the car to talk because it was chilly outside.

[9] Constable Nicholson testified that when he saw the car leave the parking lot at 2:06 a.m. he recognized the vehicle and was concerned whether Zachos was driving. He activated his lights and air horn and pulled the car over on Queen Street, a short distance from the bar. He drove up beside Zachos’ car, looked through the window while he continued to drive and saw the appellant driving. In cross-examination, he admitted he only saw the driver for three to five seconds and while the lighting was good, it was night. While looking at Zachos’ car his attention was divided between the road in front of him and the car beside him. He had no doubt about his identification. In his almost 35 years as a police officer, he could not recall an instance when any person’s eye-witness identification was wrong.

[10] The appellant testified that she was not driving and that the officer’s cruiser was never beside Zachos’ car. He always remained behind them.

[11] Zachos pulled over and the officer came to the driver’s window. The evidence was consistent, the appellant was in the driver’s seat. The appellant said it took the officer one or more minutes to come to the window. During that time, at Zachos’ request they switched seats so he would not get into trouble. She testified that she did so because she had been drinking and did not think much about it. She testified that she had no intention of driving the vehicle. While she wanted to avoid calling her mother for a ride earlier because her mother was having medical issues that were potentially serious, she would have called her mother for a ride home. She would not have driven even if the officer had asked her to do so.

[12] Constable Nicholson testified he saw no movement in Zachos’ car as he approached the driver’s window. He would have seen anyone switching seats. In five seconds, he stopped his car, put it in park, got out of the cruiser and walked up to the driver’s window.

[13] During his cross-examination, Constable Nicholson at times became an advocate, for example, noting his assumption that if the appellant was not driving she would have said so at the roadside. [^1]

[14] The appellant said that when Nicholson asked her to get out of the car, she told him that she was not driving. Nicholson denied she ever made that statement. The appellant provided a roadside breath sample that registered a ‘fail.’ She was arrested and taken to the division where she provided breath samples that analyzed over the legal limit. Her interaction with the Intoxilyzer officer was videotaped. The Crown played two excerpts during the trial. During her time with the Intoxilyzer technician, the appellant repeatedly said that she was not driving, that Zachos was driving.

The Trial Arguments

[15] Defence counsel (not Ms. Soye) submitted that there were credibility and reliability issues in relation to the officer’s evidence, that the appellant’s and her witness’ evidence was credible and that the appellant’s statement to the Intoxilyzer technician was admissible in support of her credibility at her behest pursuant the Court of Appeal judgments in Edgar and Laird. He argued the officer was “adversarial and combative” in cross-examination. His evidence that he could pull over, stop his car and be at the appellant’s window in five seconds was difficult to accept. Further, his reliability was very much in issue.

[16] Crown counsel submitted that it had been established that the appellant was the driver. However, if the Crown had not met the onus, the appellant was in care or control when she switched seats. He submitted that Ergut’s evidence and the appellant’s conflicted so that his “corroborating” testimony should not be relied upon. Finally, the Crown opposed the admissibility of the Breath Room DVD under the Edgar/Laird criteria.

The Reasons for Judgment

[17] The trial judge heard the submissions on August 26, 2016 and reserved judgment until November 4, 2016. On that date the case was remanded to Nov 15 for judgment and then to Jan 20 TBST and finally to February 23, 2018. [^2] From the submissions and reasons it is apparent that His Honour had the transcripts of both days of evidence.

[18] The trial judge’s Reasons, encompassed five and one-half pages and commenced:

So if I can have Ms. Amanatidis-Palaskas come forward. So it will be an oral judgment, obviously, and I have taken the liberty of just going through areas of the transcript.

I can advise you that this matter comes down to the credibility of Ms. Amanatidis-Palaskas, and whether or not the court found her evidence to be credible. There are various instances where the court has had issues with the manner of the evidence as it has been presented. The credibility of Ms. Palaskas, as it relates to the first ground, is where the court found it troubling.

[19] His Honour then reviewed aspects of the appellant’s evidence that he found “troubling.” For example, that they would sit in the parking lot deciding how to get home when both had been drinking and Zachos was suspended begged the question why they left it so late to have that discussion when the issue was known before they got into the car. [^3]

[20] With regards to the appellant’s evidence that Zachos told her to switch seats and they scrambled over each other, the trial judge found it made no sense as they had no relationship. It defied common sense that she would not want to get him in trouble and putting her life in danger by driving with someone she did not know.

[21] With regards to the appellant’s comment that her mother would have driven her home, His Honour found it defied common sense that she would get into the car if her mother was going to drive her home. Further, that she had no intention of driving the car after the seat switch even if the officer had told her to move the car defied logic and common sense.

[22] The trial judge concluded:

The transcript “was replete with areas in which Ms. Palaskas has given evidence that this court finds misleading, or defies common sense. That the idea is that Ms. Palaskas, on this day, this court believes beyond a reasonable doubt, was in fact driving the vehicle, and that her credibility with respect to the first rung of W.D. has been impinged.

The reality is, and as affable and, quite frankly, as likeable, I think, as Ms. Palaskas is, the reality is that when we come down to the areas of law, this court is just not swayed with respect to her testimony, and as a result, there will be a conviction entered.

The Grounds of Appeal

Do the Reasons permit Appellate Review?

[23] The Supreme Court of Canada provided the following guidance with regards to Reasons for Judgment in R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 11- 13 and 17-18 as follows:

[11] The authorities establish that reasons for judgment in a criminal trial serve three main functions:

1. Reasons tell the parties affected by the decision why the decision was made. As Lord Denning remarked, on the desirability of giving reasons, "by so doing, [the judge] gives proof that he has heard and considered the evidence and arguments that have been adduced before him on each side: and also that he has not taken extraneous considerations into account": … In this way, they attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence: … No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered.
2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. ….
3. Reasons permit effective appellate review. A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations "from the lifeless transcript of evidence, with the increased risk of factual error": … Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds.

[12] In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge's attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law. …

[13] The critical functions of reasons in letting the parties know the reasons for conviction, in providing public accountability and in providing a basis for appeal were emphasized in Sheppard. At the same time, Sheppard acknowledged the constraints of time and the general press of business in criminal trial courts and affirmed that the degree of detail required may vary with the circumstances and the completeness of the record.

[17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. … Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" -- the verdict -- and the "why" -- the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

[18] Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict. Doherty J.A. in Morrissey, at p. 525, states:

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict. [Emphasis added.]

[24] The Court further addressed the assessment of reasons in the case-specific context, as follows, at para. 37-41.:

[37] As we have seen, the cases confirm that a trial judge's reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge's conclusions - the "why" for the verdict - are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.

[38] This important role played by the record was recognized in Macdonald. The majority of the Court explained, per Laskin C.J., at p. 673, that a question of law will only be raised if an examination of the record indicates that "there is a rational basis for concluding that the trial judge erred in appreciation of a relevant issue or in appreciation of evidence that would affect the propriety of his verdict"; mere failure to give reasons, without more, does not raise a question of law.

[39] In Sheppard, Binnie J. affirmed the need to look at the record: "Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene" (para. 46). In point 2 of his summary (para. 55), he stated: "Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record." Similarly, with respect to the need for lawyers to know the basis of the judgment for appellate purposes he stated at point 3, after saying that they may require reasons: "On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record." Throughout the reasons in Sheppard, Binnie J. emphasizes the functional and relative nature of the question of whether a trial judge's reasons for judgment are adequate.

[40] Hill, citing Sheppard, confirms that "the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable" (para. 101).

[41] The contextual approach to assessing the sufficiency of reasons recognizes that the trial process, including the trial judge’s reasons, is a dynamic process, in which the evidence, counsel and the judge play different but imbricated roles. Whether the trial judge’s reasons for judgment are sufficient must be judged in the full context of how the trial has unfolded. The question is whether the reasons, viewed in light of the record and counsel’s submissions on the live issues presented by the case, explain why the decision was reached, by establishing a logical connection between the evidence and the law on the one hand, and the verdict on the other.

Analysis

[25] I am persuaded the reasons are inadequate to permit appellate review. The issues in this case were the credibility and reliability of the officer’s evidence and the defence evidence viewed in the context of all the evidence. All the evidence includes Ergut’s evidence and, if admissible, the DVD from the Breath Room. The record included the submissions of both counsel.

[26] The Reasons, made no mention of the second and third prongs of W.(D.), the officer’s evidence, Ergut’s evidence except noting there were inconsistencies with the appellant’s or the Edgar and Laird issue. While the Reasons provide the “why” the trial judge found the appellant’s evidence “troubling” and did not “sway” him, there is nothing upon which it can be determined why he found the officer’s evidence established the offence, why Ergut’s evidence was rejected or failed to raise a reasonable doubt, and why the DVD from the Breath Room was or was not admissible. While there were conflicts between the appellant’s and Ergut’s evidence, there is no law that because two witnesses give inconsistent evidence, that both are lying: R. v. Okash, 2009 ONCA 37.

[27] I have considered the respondent’s argument that looking at the submissions it can be ascertained why the appellant was convicted.

[28] On occasion, a trial judge’s comments during submissions can assist. The Court of Appeal has addressed that issue in R. v. Tiffin, 2008 ONCA 306 at para. 31:

Using a trial judge’s utterances made during the hearing to interpret statements made in the decision is only helpful where there is ambiguity in the reasons for decision. The statements made and questions asked by a trial judge during the hearing should not, as a general rule, supplement the content of the trial judge’s decision.

[29] It is apparent from the cases noted above that the submissions can be examined. However, a review of the submissions shows counsel making their arguments in regards to the credibility and reliability of the witnesses and the admissibility of the Breath Room DVD. His Honour raised some of the issues with regards to the appellant’s credibility that were noted in the Reasons. Looking at the submissions does not advance the Crown’s argument that they would assist by, in effect, filling in the blanks in the Reasons. There is nothing in the trial judge’s comments during submissions that reflects his findings in regards to the officer or Ergut.

[30] Further, I am not persuaded there is any ambiguity in the Reasons. It is the omissions from the reasons that raise concerns. Not that a statement or statements are ambiguous.

[31] While there are cases where an appellate court can determine the trial judge’s reasoning, I am not persuaded the law requires the appellate court to effectively determine what a trial judge would have said had he or she provided adequate reasons in the face of significant credibility and reliability issues.

Do the Reasons provide the basis upon which the trial judge concluded the appellant was driving and whether the appellant was convicted of driving or care or control?

[32] It is appropriate to consider the appellant’s second and third grounds together. The adequacy of the reasons ruling addresses the basis of the finding of guilt. There can be no meaningful appellate review. The trial judge found that the appellant was driving. That answers the second ground.

Did the trial judge err in applying W.(D.) ?

[33] To properly assess this ground requires a brief visit to W.(D.) where the Supreme Court of Canada held:

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[34] In a non-jury trial there is no requirement for the judge to set out the three prongs. It is not a magic incantation: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152; R. v. F.E.E., 2011 ONCA 783. The critical issue is whether the presumption of innocence and burden of proof were properly applied in a credibility case. Quoting the three steps correctly and failing to apply them is reversible error. Stating the prongs incorrectly but applying them correctly is not reversible error.

[35] The reasons that were provided reflect errors in relation to W.(D.). In reaching this conclusion, I appreciate that appellate courts are to examine the reasons as a whole to determine if errors were made. It may be that a trial judge misstated the evidence or law but accurately stated the evidence or law in another area of the reasons. Here, the reasons addressed one issue only – the appellant’s credibility.

[36] Reading the Reasons as a whole, the only basis provided for why the appellant was convicted was her troubling evidence. The Reasons commence by identifying the key issue as the appellant’s credibility. They note her evidence was “troubling” and end finding that her credibility “has been impinged” and that the court was “not swayed with respect to her testimony.”

[37] The comments reflect a misapplication of the burden of proof. An accused person has no onus to establish his or her innocence or to sway a court. The key issue in the case was whether the Crown had established beyond a reasonable doubt that Constable Nicholson saw the appellant driving. That involved an assessment of his credibility and his reliability, issues that were never addressed.

[38] Further, that the appellant’s evidence was impinged, does not end the W.(D.) analysis. The assessment is not limited to the appellant’s evidence. The W.(D.) analysis applied to all the defence evidence, including Ergut’s testimony: R. v. B.D., 2011 ONCA 51, at para. 105. As noted above, that there was an inconsistency between the appellant and Ergut did not mean they were both lying about who was driving when the vehicle left the bar.

[39] Assuming that His Honour’s finding regarding the appellant’s credibility were a rejection of her evidence (a finding that is not readily apparent from the Reasons) it is a reasonable inference that her evidence also did not leave him with a reasonable doubt: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 59.

[40] However, that does not relieve the trial judge from assessing the balance of the evidence – the third prong in W.(D.). The officer’s credibility and reliability were significant areas addressed by both counsel in their trial submissions. The issues were never addressed in the reasons.

Did the trial judge err in failing to address the appellant’s Edgar/Laird application?

[41] He did. A person’s response upon being apprehended or shortly thereafter may be relevant to the person’s credibility and as circumstantial evidence bearing on guilt or innocence: Edgar. This was a case in which credibility issues had to be resolved. If the statement was admissible pursuant to Edgar and Laird, it could have enhanced the appellant’s credibility that the trial judge found wanting.

[42] Finally, in regards to the Crown’s argument that the appellant was guilty of being in care or control even if she was not driving, that finding would have required an assessment of the applicable presumption and all the evidence. That was never done and cannot be done on appeal.

Conclusion

[43] The appeal is allowed and a new trial ordered. The appellant is ordered to appear in Courtroom 104 of the Peel Courthouse at 9:00 a.m. on October 23, 2018 to set a new date for trial failing which the Crown may apply for process to compel her attendance.

[44] I wish to express my appreciation to both counsel for their helpful written and oral submissions as well as to the Downtown Legal Service students for their well-prepared material.

DURNO, J.

Released: September 28, 2018

COURT FILE NO.: CR-17-401-00AP DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Crown - and – ATHANASIA AMANATIDIS-PALASKAS Appellant REASONS FOR JUDGMENT Durno J. Released: September 28, 2018

[^1]: An accused person’s silence on arrest cannot be used to incriminate them: R. v. Rickets, 2010 ONCA 820 [^2]: There are no indications on the information why the judgment was adjourned three times. [^3]: The appellant testified they had previously talked about the issue.