Court File and Parties
Court File No.: 29/17 Date: 2018-11-13 Ontario Superior Court of Justice
Between: Her Majesty The Queen, Appellant – and – Vladislav Kapoustianski, Respondent
Counsel: S. McNaughton, for the Appellant S. Gehl, for the Respondent
Heard: July 13, 2018
Before: McArthur J.
Introduction
[1] After a trial in the Ontario Court of Justice at Woodstock, the respondent was acquitted of impaired operation of a motor vehicle and failing to comply with a breathalyzer demand.
[2] The acquittal on the refusal charge arose at the end of the Crown’s case upon a motion for a directed verdict. The acquittal on the charge of impaired driving occurred at the end of the case where the respondent testified.
[3] The appellant appeals on the bases that:
a. The judge erred in directing a verdict of acquittal; and
b. The judge’s reasons acquitting the respondent of impaired driving were deficient, failed to explain the path of reason taken and did not permit meaningful appellate review.
[4] After the initial hearing and submissions, I asked the parties for further written submissions in relation to the directed verdict issue. I thank both counsel for these. I have taken these submissions into consideration.
[5] For the reasons that will be provided, the appeal will be dismissed.
Factual Background
[6] The respondent was operating a motor vehicle on August 15, 2015 through Oxford County when, at a T-intersection, his vehicle went off the road and into a ditch. The roads were clear and dry with little traffic.
[7] A short time before the vehicle went off the road, the respondent while driving, stopped and spoke to a witness who was walking his dog along his young son. The respondent had made comment about his dog. The witness could smell alcohol. The respondent did not respond to questions from this witness as if he was lost or needed directions.
[8] Another witness observed the respondent’s vehicle proceed to the end of the street and make a wide turn with both front tires going onto the grass next to a stop sign. The vehicle reversed, made a wide turn on the grass, reversed again and left the area. This witness agreed that it was possible that the vehicle was travelling too fast and made wide turns but otherwise travelled normally. This witness thought that the respondent was on something as a result of the respondent acting distraught from what the witness had asked.
[9] A tow-truck operator came upon the respondent’s vehicle in the ditch with the respondent in the driver’s seat of the vehicle. The operator described the respondent as dazed and confused. The operator went back to his vehicle and called police. While on the call, the respondent came up to the operator and asked to pull the vehicle from the ditch. The operator refused and said the police were on their way. The respondent kicked the door of the operator’s truck, was observed to have alcohol on his breath and appeared to stumble while walking out of the ditch.
[10] Constable Havekes attended the scene. The respondent’s vehicle was in the ditch. The respondent had watery eyes, a flushed face and a strong odour of alcohol on his breath. The respondent was unsteady on his feet as he walked. The officer arrested the respondent for impaired driving.
[11] The respondent identified himself as the driver of the vehicle to the officer but later denied being the driver. The respondent seemed dazed and confused. While transported to the police detachment, the respondent became increasingly agitated, cried and yelled.
[12] At the sally port area of the detachment, the respondent refused to exit the police cruiser and demanded the officer’s badge number. He was escorted to the booking area by two officers where the respondent cried, yelled, swore and made other demands, and refused to provide his last name. He was escorted to a cell. This activity at the station was all captured on video that was viewed and made an exhibit.
[13] Of significance on video at 10:55 p.m., while in the cell, the respondent is seen and heard speaking to two police officials; to Sergeant MacKenzie and one other officer who is not visible. The officer who is not visible asks the respondent “Do you wanna give us a breath sample or not? Last time. I’m gonna ask you one more time. Are you gonna give us a breath sample or not?” The respondent asks “Why would I give you a breath sample?” the officer replies “It’s a yes or no. Not why. Are you gonna give me a breath sample? Yes or no?” The respondent says “No”. The officer says “Alright. No? Ok.”
[14] Constable Havekes testified that she was provided information at 10:51 p.m. by Constable Broadhurst that the respondent had refused to give a breath sample. The defence objected to the testimony as hearsay and the trial judge admitted it on the basis that it was not being elicited for its truth.
[15] After the trial judge granted the motion by the defence for a directed verdict, the respondent then testified.
[16] The respondent testified he had attended a barbeque, had consumed wine and ate alot. He was driving home alone in the vehicle and became lost trying to get to Highway 401. He was not familiar with the area. He asked for directions from the witnesses but had little recall about his interactions, agreed he may have made a wide turn, explained that as a truck driver he was used to driving large trucks and overestimated the turning radius, was in a hurry and ran through the stop sign and into the ditch, was in shock from entering the ditch and did not recall some details because of this.
[17] The respondent also testified amongst other things that he was in alot of pain because of the handcuffs on him. This was the basis for his continued belligerence, incoherence, difficulty sitting still, inability to get out of the cruiser and his loss of balance while urinating.
The Standards of Appellate Review
[18] The standard of review on appeal on a question of law is correctness. On a question of fact the standard is palpable and overriding error.
[19] For questions of facts, the standard of review first is whether the judge made a palpable and overriding error in making the factual findings and then whether the trial judge made any palpable and overriding error in drawing inference from those factual findings.
[20] With respect to a mixed question of fact and law involving a trial judge’s interpretation of the evidence as a whole, the standard is palpable and overriding error.
[21] If the mixed question of fact and law involves a trial judge’s interpretation of a legal standard, the error must constitute an error in law and is therefore subject to the standard of correctness.
[22] An appellate court should grant an appeal of a trial judge’s decision if:
a. It cannot be supported on the evidence;
b. It is clearly wrong in law;
c. It is clearly unreasonable; or
d. There was a miscarriage of justice.
See R. v. Rivera, 2011 ONSC 255 at para. 32.
Analysis and Findings
Impaired driving charge
[23] The Crown submits the judge’s reasons are deficient since the reasoning path is not apparent, the reasons leave open the possibility that the trial judge erred and that the trial judge misapprehended the evidence, failed to apply the correct test or engaged in impermissible speculation. I disagree.
[24] The Crown’s view of the evidence is markedly different from that of the trial judge. However, this is not the starting point nor the basis for a reconsideration of the case. The standard applicable in this regard is whether there occurred a palpable and overriding error. There is no such error here.
[25] The reasons of a judge must grapple with the live issues in a manner that that a review can be exercised. The judge must do so to fulfill the duty of accountability to the parties before the court and the public. A free-standing deficiency is insufficient. A deficiency must lead to real prejudice to the right to an effective appeal.
[26] In this case, the judge heard evidence from three civilian witnesses and Constable Havekes on the first day of trial and Constable Killoran on the second day of trial. The Crown closed its’ case and the directed verdict application was made. The respondent then testified in his own defence and submissions were made.
[27] Overall, the evidence and submissions comprised three days. An interpreter in the Russian language was required for the respondent throughout the trial. The decision was reserved and delivered on November 16, 2017.
[28] The trial judge’s decision spans 41 pages. He first dealt with various Charter issues that involve 31 pages. The balance of the decision was devoted to the impaired driving issues in relation to the Crown’s burden of proof. He properly cited the applicable law as to impairment and cautioned himself not to consider evidence in isolation. He then reviewed each of the civilian and police witnesses.
[29] He then considered the evidence of the respondent and directed himself as to the requirements expressed in R. v. W. (D.). He found some difficulties with the respondent’s evidence, detailed some specific problematic features and found he did not believe the respondent’s evidence. He outlined the symptoms of impairment, commented on the indicia of impairment relative to the respondent’s explanations that he found plausible as well as other evidence. He found he could not conclude that respondent’s behaviour and conduct were a manifestation of impairment by the alcohol or a drug.
[30] The trial judge was certainly alive and alert to the legal issues as well as the evidence. He also articulated both the relevant issues and pertinent evidence in a manner that his reasons permit a proper review to be exercised in this case.
[31] In addition and of significance, the trial judge did not reject the evidence of the respondent. He was entitled to do so based on issues, the evidence heard in the case and in accordance with the principles as outlined in R. v. W. (D.).
[32] In relation to impairment, the trial judge found that the indicia were equally consistent with respondent being an angry, impulsive and erratic man. He stated this was not a flattering portrait of the respondent but acknowledged this was not the standard that the defence had to mount to a successful defence.
[33] Finally, the trial judge was expressly aware that his findings were based on consideration of the whole of the evidence and found the Crown had not proven the case beyond a reasonable doubt.
[34] The Crown submitted, amongst other points, that the trial judge erred in that he did not have the evidential basis to find that the respondent was an angry, impulsive and erratic man since the respondent did not actually testify that he was an angry, impulsive and erratic. However, the judge heard all of the evidence, listened to and observed the witnesses and was entitled to make these findings as the trier of fact on this record. This was not merely speculation or against the weight of the evidence as the Crown maintained.
[35] The trial judge is not obliged to express self-instruction on R. v. W. (D.)-related principles. A fair reading of the record raises no concerns of a failure to apply the law relating to the burden of proof. The same can be said as to the law relating to impairment of the ability to operate a motor vehicle by alcohol or a drug. The trial judge addressed all of the vital issues and conducted a balanced assessment of the evidence. His reasons were entirely responsive to the context and the issues in the case.
[36] I find the judge did not make any palpable and overriding error in his assessment of the evidence or in making the findings of facts as in relation to the impaired operation charge. There is no cause for appellate intervention in this regard.
The Directed Verdict
[37] The standard of review in this respect is whether the judge was correct in granting the directed verdict.
[38] The Information in this case was specific that the refusal was to a breathalyzer demand made by Constable Broadhurst.
[39] Constable Broadhurst was not called to testify at the trial. No direct testimony identified this officer at any point throughout the trial.
[40] The videotape evidence shows Sergeant MacKenzie present with another person who is out of camera view. This non-visible person and respondent had a verbal exchange that was submitted as a refusal at 10:55 p.m. on the video.
[41] Sergeant MacKenzie likewise was not called to testify at the trial. In seeking to admit the evidence, the Crown counsel at trial indicated that there was going to be evidence from the breath technician and that this evidence was “narrative”. However, the breath technician, Constable Broadhurst, never did testify.
[42] The arresting officer, Constable Havekes, testified that she was informed by Constable Broadhurst, the breathalyser technician, that the respondent had refused to give a breath sample. The trial judge allowed this hearsay statement in on the basis that it was not being elicited for its truth.
[43] The Crown submitted the evidence of Constable Havekes was circumstantial evidence for the inference that Constable Broadhurst was the officer who made the demand that was refused. During the submissions on the directed verdict motion the trial judge raised the issue with the Crown counsel as follows:
“THE COURT: I‘m the officer who’s charging it. I need to have reasonable grounds. Yeah this is it, there’s nothing else. We cannot connect the dots and say that’s Broadhurst I think pretty easily, but she can’t say that and she’s pretty fair in doing so but she can’t. At the end of the day, how do we know who’s in there? There’s a whole bunch of officers streaming in and out. There’s several earlier in the video at the in the sally port, and in the station itself. You clearly have a concern that even officer Havekes relates in her evidence that, you know, she’s not from the jurisdiction. She’s relying on these other officers who she doesn’t really know, for them to carry on their duties. So she quite fairly, you know, makes an assumption that’s him.
MR. MCNAUGHTON: Right.
THE COURT: But I think it’s the other part of the equation where she says I can’t say that’s the transaction I’m relying on. I think that’s the issue I really have in connecting those dots for you.
MR. MCNAUGHTON: Right. But she was being very fair in saying well I – I can’t say with 100% certainty that that’s the refusal we’re talking about.
THE COURT: But I have to have 100% certainty….”
and shortly after this
THE COURT: “…We’re dealing with the wording of the information that specified it’s to this particular officer and…”
This exchange demonstrates that the trial judge was certainly alert and alive to both of the issues of the identification of the officer as well as the timing based on how the Information was particularized in the case.
[44] The Crown relied upon R. v. Evans, [1993] 3 S.C.R. 653 to argue that the statement is circumstantial evidence of identity. R. v. Evans is distinguishable from this case. In R. v. Evans, the statement in question was not admitted for its truth. The probative value was in the fact that the statement was made. The fact of the statement narrowed the identity of the declarant to a group of individuals, of which the accused was a member. That reasoning does not apply in this case. The statement of Constable Havekes is only capable of yielding evidence of identity if the statement is admitted for its truth. The fact that it was made adds nothing to the fact finding process in this case. Stated differently, probative value depends on a hearsay use, rather than a non-hearsay use of the statement. The statement was initially led as narrative when tendered by the Crown. It is not eligible for admission on a hearsay basis to prove identity.
[45] The trial judge in this case found as follows:
“There clearly was an utterance made on the video. There are two officers there. There’s an assumption made that it’s Broadhurst. In my view that is not sufficient to meet the standard I’m required to impose. I am suspicious that it is. It could be Constable Broadhurst, but that’s not sufficient at this stage and I grant that motion on that particular count and that count is dismissed.”
[46] This finding must be seen in the context of the other evidence in the case at that point and how it was tendered. Constable Havekes testified that at 10:51 p.m. Constable Broadhurst told her that the respondent had refused the breath sample. However, the alleged refusal on the videotape occurs at 10:55 p.m. The actions of the respondent at 10:55 p.m. could not logically form that basis of a refusal at an earlier period absent further evidence and explanation. None was provided in this case. The trial judge was particularly alive and sensitive to this issue where it involved many police officers.
[47] A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction. Whether or not the test is met on the facts is a question of law which does not command appellate deference to the trial judge: See R. v. Barros, 2011 SCC 51.
[48] A judge is permitted to a limited weighing of circumstantial evidence but must accept the credibility of the evidence relied on by the Crown and assume reasonable inferences from primary facts that are most favorable to the Crown: See R. v. Jackson, 2016 ONCA 736.
[49] Here, the trial judge acknowledged the possibility that the officer to whom a refusal was made may have been Constable Broadhurst based on the testimony of Constable Havekes. This is based in the evidence on what Constable Broadhurst told Constable Havekes at 10:51 p.m. However, the refusal by the respondent relied on by the Crown as presented on the videotape occurs at 10:55 p.m. This critical feature of the evidence was recognized by the trial judge.
[50] The trial judge’s limited weighing at this stage must be seen in the context of the actual evidence presented by the Crown to that point. The limited weighing was done based on the video depiction at 10:55 p.m. that the Crown maintains was the refusal involving Constable Broadhurst’s demand. However, the circumstantial evidence identifying Constable Broadhurst to whom a refusal was made by the respondent comes through Constable Havekes at 10:51 p.m.
[51] The primary facts most favourable to the Crown on the evidence presented at that point in this case are:
a. at 10:51 p.m., the respondent refused to provide a breathalyzer sample to Constable Broadhurst who is identified at 10:51 p.m. However, there is no evidence of the demand nor acts or words of refusal by the respondent at or before 10:51 p.m.; and
b. at 10:55 p.m., some of the respondent’s words and acts are on the video. However, there is no evidence to establish Constable Broadhurst as the officer at that time when there were many other officers involved.
In either scenario, limited weighing of these facts reveals insufficiencies fatal to the Crown’s case as noted. Limited weighing is permitted and involves a narrow context. It would otherwise make little sense to allow weighing evidence without some context where any inferences, however fanciful or conflicted, can be submitted as some evidence to meet the test.
[52] The evidence offered by the Crown, as a matter of logic and experience, tends to not establish a refusal to provide a breathalyzer sample to a specific officer at a specific time. On this record, one cannot logically justify a finding of guilt based on either primary fact. In other words, a properly charged trier of fact, acting reasonably, could not properly justify a conviction for refusal of a breathalyzer demand of the particular officer based on either of these primary facts.
[53] If I am wrong in this respect and had found that the trial judge did err, the issue then is whether on this record the Crown can demonstrate that an error by the trial judge impacted the verdict.
[54] As addressed by the Manitoba Court of Appeal in R. v. O’Kane, 2012 MBCA 82 and citing the earlier Ontario Court of Appeal decision of R. v. Greenwood, 1991 ONCA 2730, the Crown has to demonstrate that the legal error may have impacted the verdict and that the appellate court cannot speculate as to what might have occurred if the trial had proceeded. That court went on to state in para. 71:
“…it will be rare that appellate court will not order a new trial after determining that a directed verdict of acquittal was an error at law, particularly when the trial was with a jury.”
[55] The Ontario Court of Appeal in R. v. Collins and Pelfrey, 1993 ONCA 8632, adopted a similar approach and stated:
“In an appeal from a directed verdict of acquittal, an appellate court has traditionally simply looked to see if there is evidence which, if standing alone, could support a conclusion of guilt beyond a reasonable doubt. This is the same function which the trial judge is called upon to perform. If there is such evidence and a verdict of acquittal has been directed, the appellate court has usually ordered a new trial. It has not gone on to independently weigh and assess the evidence in order to form its own conclusion as to the reasonableness of the verdict of acquittal. One of the reasons is that the appellate court does not know if it has all of the evidence to weigh and what inferences are capable of being drawn from it”.
[56] In submissions, the Crown asserted that it might have asked questions of the respondent going to his actions in relation to the refusal as well as the identity of the officer if the directed verdict had not been granted. This position is speculative and invites to this court to do what it has been directed to avoid.
[57] In these unusual circumstances, the Crown is unable to demonstrate that an error by the trial judge impacted the verdict. Here the evidence was that the actions depicted on the video at 10:55 p.m. was the refusal of Constable Broadhurst’ s demand whereas the circumstantial evidence identifying Constable Broadhurst and the refusal was from another officer at or before 10:51 p.m., not at 10:55 p.m.
[58] To put it another way, the hearsay statement of Constable Havekes at 10:51 p.m. as circumstantial evidence of a refusal with Constable Broadhurst, could not on this record be the proper basis of a trier of fact to act reasonably and logically to find that Constable Broadhurst was the officer at the time of a the respondent’s actions at 10:55 p.m. This limited weighing is essentially what the trial judge did and was permitted to do within narrow contextual confines.
[59] This analysis also avoids speculating what might have happened had the trial judge not directed a verdict at that point as directed by the higher courts.
Conclusions
[60] The trial judge did not err in directing a verdict of acquittal on the refusal count at the end of the Crown’s case. Alternatively, if the trial judge erred, this error did not impact the verdict that was rendered and, in any event, does not justify a retrial in the circumstances.
[61] The trial judge did not err in his reason in acquitting the respondent of impaired operation of a motor vehicle for the reasons outlined earlier.
[62] The appeal by the Crown is dismissed.