Court File and Parties

COURT FILE NO.: SCA 9255 DATE: 2018-09-19 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN J. Thompson, for the Respondent

- and -

DANIEL FERRIERA L. Adler, for the Appellant

HEARD: August 8 & September 5, 2018 The Honourable Justice C.D. Braid

REASONS ON APPEAL

Corrected decision: The correction was made on October 10, 2018. The reference to “4284” in the citation is incorrect and has Now been amended to read “6004”.

I. OVERVIEW

[1] An officer attended a two-vehicle collision and spoke to the appellant, who was one of the drivers. The officer observed that the accused had glossy eyes, the odour of alcohol on his breath and slightly slurred speech. He appeared dopey and was confused about how the collision had occurred. The officer arrested the appellant and took him to a police detachment where he provided two breath samples, both of which tested in excess of 80 mg of alcohol in 100 ml of blood.

[2] The trial judge found that the officer had reasonable and probable grounds to arrest the appellant for impaired driving and dismissed the appellant’s Charter application. The appellant was convicted of the “over 80” offence. He now appeals that conviction.

[3] The following are the issues on this appeal:

A. Was there a palpable and overriding error in the findings of fact? B. Was the trial judge correct in determining that, objectively, there were reasonable and probable grounds?

[4] For the reasons set out below, I dismiss the appeal.

II. ANALYSIS

A. Was There a Palpable and Overriding Error in the Findings of Fact?

[5] On appeal, the foundation of the appellant’s position is that the trial judge misapprehended the evidence and made errors in his findings of fact. The appellant submits that the trial judge gave insufficient reasons regarding the reliability of the officer’s evidence. It is argued that there were significant inconsistencies or conflicts in the evidence that were not addressed in the reasons for judgment. The appellant also submits that the trial judge engaged in improper speculation regarding the officer’s basis for belief that it had been a rear-end collision.

[6] On appeal, deference must be given to the findings of fact made by the trial judge who actually saw and heard the witnesses. Deference must also be given to factual inferences because the trial judge had intimate exposure to all the evidence, leaving them in a better position to draw these inferences. Findings of fact will not be reversed unless the trial judge has made a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[7] A trial judge’s reasons need not be perfect or lengthy. However, they must be sufficient to enable the parties, the general public and this court, sitting in review, to know whether the applicable legal principles and evidence were properly considered: see Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.).

[8] Appellate courts are not to place an impossible burden on busy trial courts in terms of the writing of reasons. An appeal court cannot intervene merely because it believes the trial court did a poor job of expressing itself. An accused has a right to adequate reasons, not perfect ones: see R. v. Tzarfin, 201 O.A.C. 183 (C.A.); R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245.

[9] While it is useful for a judge to attempt to articulate the reasons for believing a witness on a particular point, the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. That does not make the reasons inadequate. Assessing credibility is a difficult matter that does not always lend itself to precise and complete verbalization: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3.

[10] In this case, the trial judge found that Cst. Donnelly provided evidence that was straightforward and very detailed; he provided a chronological description of what he observed and what he did. The trial judge stated that he did not detect any rush to judgment, unprofessionalism, or hidden agenda on the part of the officer.

[11] This is not a case where the officer resiled from his prior testimony or retracted what he had previously said. No other evidence was called to contradict the officer, and his evidence was not internally inconsistent.

[12] The trial judge did not specifically use the word “reliable”. While he could have said more about the notes or lack of notes, I am satisfied that the trial judge sufficiently addressed the officer’s credibility and reliability. He gave adequate reasons in support of the findings he made. It was open to the trial judge, on the evidence before him, to make the findings that he did.

[13] The appellant also submits that the trial judge engaged in improper speculation regarding the officer’s basis for belief that it had been a rear-end collision. I do not accept this submission. The officer stated that he had observed evidence, including vehicle damage, that led him to draw that conclusion. The trial judge was entitled to draw reasonable inferences from this evidence.

[14] It is the function of a trial judge to make findings of fact and draw proper inferences from the evidence. The trial judge’s findings are well supported by the evidence. I see no error that warrants appellate intervention.

B. Was the Trial Judge Correct in Determining That, Objectively, There Were Reasonable and Probable Grounds?

[15] As a secondary argument, the appellant submits that the officer did not have reasonable and probable grounds. It was conceded that, subjectively, the officer had grounds to arrest. However, the appellant argues that the officer’s incompetence, questionable powers of observation, and inability to accurately recall key factors, should have left the trial judge questioning whether the officer objectively had reasonable and probable grounds.

[16] An officer must have reasonable and probable grounds to arrest an individual without a warrant. The officer must have an honest belief that the suspect committed the offence, and that belief must be objectively reasonable. The asserted grounds must be justified on an objective measure of a reasonable person standing in the shoes of the officer: see R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250.

[17] Determining whether there are reasonable and probable grounds does not involve a parsing out or mathematical assessment of facts and circumstances. It requires a common-sense, non-technical approach. When considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances. It is not appropriate to consider each fact in isolation: see R. v. Campbell, 2010 ONCA 588 (aff’d 2011 SCC 32, [2011] 2 S.C.R. 549); R. v. Italiano, 2015 ONCA 179.

[18] The determination of whether the facts as found by the trial judge amount at law to reasonable and probable grounds involves the application of a legal standard to the facts of the case, which is a question of law. A trial judge’s conclusion on the issue of whether the officer had reasonable and probable grounds to make an arrest is therefore reviewable on a standard of correctness: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527.

[19] The appellant argues that the accident may have been responsible for the appellant’s glossy eyes, lack of balance, and other symptoms. He submits that, in light of the officer’s failure to consider the circumstances under which the collision occurred, the court should have concluded that there were insufficient grounds to arrest on an objective basis.

[20] I do not agree. The appellant told the officer that he had been checked out by ambulance attendants and that he was not injured. It would be speculation to suggest that the symptoms observed by the officer were caused by the accident. The trial judge did not err on this point.

[21] In this case, the trial judge accepted that the officer had the following grounds for arrest:

1. He noticed that the appellant’s eyes were glossy;
2. He detected an odour of an alcoholic beverage coming from the appellant’s breath;
3. He noted that the appellant was swaying back and forth;
4. He described the appellant as confused and dopey;
5. He described the appellant’s speech as slightly slurred and deliberate; and
6. He believed that the appellant was confused about how the collision had occurred. The appellant appeared to believe it was a head-on collision, but the officer had seen evidence that led him to believe that it was not.

[22] Once the trial judge concluded that the officer had these grounds for arrest, it was open to him to accept that these grounds were also objectively reasonable. In my view, the facts overwhelmingly provide support for the trial judge’s findings that, objectively, there were reasonable and probable grounds.

[23] In the totality of the circumstances, the police had subjectively and objectively justifiable reasonable and probable grounds to arrest the respondent. The trial judge made no error in coming to that conclusion.

III. CONCLUSION

[24] For all of these reasons, the appeal is dismissed.

Braid, J.

Released: September 19, 2018