Court File and Parties

COURT FILE NO.: CR-18-007-AP DATE: 2018/12/04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen Respondent

v.

Graham Blair Appellant

BEFORE: Justice A. Doyle

COUNSEL: Adam J. Zegouras, Counsel for the Respondent Leo Adler, Counsel for the Appellant

HEARD: September 6, 2018 at Belleville, ON

Decision

Overview

[1] The Appellant, Graham Blair, is appealing a January 29, 2018, decision of Graydon J. wherein he was convicted of driving whilst his ability to operate a motor vehicle was impaired by the consumption of alcohol.

[2] The conviction arose from an incident that occurred on October 9, 2016. 911 dispatch received a call from a member of the public (“the Caller”) indicating that they had seen a driver who appeared as though he had been drinking. The Caller reported a one vehicle accident involving a vehicle which landed in a ditch off the road. The vehicle belonged to the Appellant. Two police officers, Goodwin and Quinlan, arrived at the scene and the Appellant was arrested.

[3] Both officers testified at trial, and the Trial Judge accepted the evidence of Goodwin, concluding that he had reasonable and probable grounds to make a demand and arrest the Appellant because: he had observed that the Appellant’s steps were very deliberate, the Appellant’s eyes appeared glossy, and the Appellant had a smell of alcohol emanating from him. In addition, the call from dispatch received by the officers indicated that alcohol may have been involved in the accident.

[4] The Trial Judge was satisfied beyond a reasonable doubt that the Appellant was impaired, and entered a conviction on the charges. The Appellant was fined $1,000, a $300 Victim Fine Surcharge, and received a one-year driving prohibition.

[5] The Appellant submits that the Trial Judge erred as follows:

1. He placed the onus on the Defence to show that there was a breach of s. 9 of the Canadian Charter of Rights and Freedoms (the “Charter”);
2. he failed to find a breach of the Appellant’s statutory and s. 9 Charter rights;
3. he found that Goodwin had reasonable and probable grounds to demand a breath sample in accordance with the principles set out in R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641;
4. he made contradictory findings of facts regarding the two officers who arrived at the scene, which were not supported by the evidence; and
5. he erred when he convicted the Appellant for driving while impaired beyond a reasonable doubt by engaging in speculation; by erring in his assessment of the evidence; by misconstruing the evidence and by reversing the burden of proof.

[6] Therefore, this appeal turns on whether the Trial Judge appropriately took into consideration the context in which the demand and the arrest were made in determining that there were reasonable and probable grounds; whether the Appellant’s s. 9 Charter rights were infringed; who bears the onus establishing a s. 9 Charter breach; whether Trial Judge made reasonable findings of fact based on the evidence before him; and whether there was evidence of the offence beyond a reasonable doubt.

[7] For the reasons that follow, I dismiss the appeal.

Background

[8] On October 9, 2016, Officer Quinlan was dispatched to the scene of a single motor vehicle accident involving a vehicle that was found in a ditch. The vehicle belonged to the Appellant. Quinlan’s dispatch came as the result of a 911 call placed by a Caller reporting a driver who looked as though he had been drinking. Police arrived on the scene approximately 20 minutes later.

[9] Quinlan was informed by dispatch that the Appellant had spoken to a dispatcher, but that he had a hard time communicating, requiring the dispatcher to have questions repeated. At trial, however, Quinlan agreed that the cellphone service was spotty from time to time in that area.

[10] At the scene, Quinlan spoke to an individual, Mr. Robert Grant Jack, who had been driving with his wife, son, and daughter-in-law on the same road as the Appellant. Mr. Jack’s wife was the Caller. Quinlan thanked Mr. Jack for calling in the incident, but did not ask him what happened or whether the Appellant was the driver.

[11] Quinlan stated that he observed the Appellant, who was wearing only one shoe, having difficulty coming out of the swampy ditch where his vehicle had landed. Quinlan watched the Appellant walk up and out of the ditch and questioned him as to what happened – to which the Appellant responded that an oncoming motor vehicle forced him off the roadway. Quinlan did not inquire whether any witnesses saw any motor vehicles on the road or at the scene prior to the Appellant’s car winding up in the ditch, approximately 30 seconds before the Jack family arrived.

[12] Quinlan described the Appellant as being slow and deliberate in his steps and that his eyes were red and glossy. Quinlan stated that the Appellant appeared to be confused when asked for identification, began picking at several cards, and could not produce it at the time – instead grabbing a bank card. It was later confirmed in Officer Goodwin’s evidence that Quinlan had shown him the Appellant’s driver’s license.

[13] Quinlan stated that as he and the Appellant walked to the police cruiser, the Appellant stated that he wanted to find his other shoe. They returned to the Appellant’s vehicle and did not find it; however, Quinlan stated that the Appellant required assistance getting in and out of the driver’s side door. Officer Goodwin was also present during the shoe retrieval attempt and both officers assisted the Appellant out of his vehicle and helped him up the slope. It was also during this incident that Quinlan told Goodwin that the Appellant had trouble producing his driver’s license.

[14] Goodwin had also been dispatched to the scene and arrived 5-10 minutes after Quinlan. Upon his arrival, Goodwin saw the Appellant’s motor vehicle on an angle over and down the embankment, and was informed by Mr. Jack that the Appellant had been driving it.

[15] Goodwin stated that when he first approached the Appellant, he noticed that his steps were very deliberate and his eyes glossy. He also noticed an odour of an alcoholic beverage coming from the Appellant and subsequently placed him under arrest for impaired operation of a motor vehicle. The Appellant was handcuffed, cautioned, read his rights to counsel, and read his breath demand by Goodwin. Quinlan asked Goodwin if he could be the investigating officer, and he agreed. The Appellant was then placed in Quinlan’s cruiser.

[16] Originally the Appellant was charged with impaired driving and over .80. At the original trial date, the information was quashed, and instead a summons was issued as the Crown decided to proceed only with the impaired driving.

Trial Judge’s Decision

[17] The Trial Judge found Quinlan’s evidence unreliable as Quinlan lacked recall, had misunderstandings and/or made misstatements, and had a dearth of police experience. The Trial Judge made the following findings regarding Officer Quinlan:

• He did not keep complete notes;
• the Caller had said the driver of the vehicle in question had been drinking. Quinlan never asked Appellant about his alcohol consumption;
• he never asked the Appellant to blow in his face;
• he never detected an alcoholic odour on the Appellant;
• he claimed that Goodwin stated that he smelled alcohol from the Appellant’s breath; however, Goodwin actually smelled an alcoholic odour coming from the Appellant, and did not mention breath;
• he did not accept his evidence that he only remembered after he was arrested that en route he had heard that Appellant revved his tires and engine; and
• he could not recall the Appellant producing Identification to Officer Quinlan.

[18] Alternatively, the Trial Judge accepted Goodwin’s evidence finding it reliable and credible because:

• He was an experienced officer (20 years);
• he was alert to where people were positioned when he arrived at the scene;
• he asked Mr. Jack who drove the vehicle;
• he recalled that the Caller believed that alcohol was involved;
• he made the following observations of the Appellant: “walking, his steps were very deliberate, his eyes appeared very glossy” and he had no explanation for the accident;
• he learned about the Appellant’s difficulty producing identification from Quinlan;
• he saw the Appellant’s driver’s license and knew that he had a residence on the road which would have made him familiar with the road and aware of its conditions;
• he read the Appellant his rights; and
• he was the officer in charge, and it was Quinlan who asked permission to be the investigating officer.

[19] On the voir dire, the Trial Judge found that only Goodwin had reasonable and probable grounds to make the demand and place the Appellant under arrest.

[20] In conclusion, the Trial Judge found that this case was on all fours with R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.), and that there were reasonable and probable grounds to detain the Appellant.

[21] Regarding the charge, the Trial Judge considered Mr. Jack’s evidence regarding the road conditions:

• the Appellant was travelling on a narrow dirt road;
• it was a sunny day in the afternoon;
• it was not raining; and
• there was a sign on the road stating “Winding Narrow Road Proceed with Caution”.

[22] Mr. Jack stated that the Appellant was driving behind him and felt as though the Appellant was going to force him off the road as he came up quickly behind them. Mr. Jack slowed down his vehicle, which was a wide-mirrored half-ton truck, and pulled to the side to allow the Appellant’s vehicle to pass them.

[23] About a one-half kilometer further up the road, Mr. Jack again saw the Appellant’s vehicle, though this time it was stopped in the middle of the road. Mr. Jack honked his horn, which prompted the Appellant to take off fishtailing along the road. A short time later, Mr. Jack again came upon the Appellant’s vehicle, this time in the ditch (tilted on its passenger side, driver side up, left rear wheel off the ground, stuck, immoveable in a swampy marsh). Mr. Jack’s son approached the Appellant’s vehicle and opened the door to get him out. The Appellant asked the Jacks twice if they could tow him out of the ditch but they refused. Mr. Jack testified that the Appellant seemed anxious to get his vehicle out of the ditch, but that the back wheel was not touching the ground making it impossible for him to drive it out. Mr. Jack’s son provided no evidence regarding any perceived drinking, slurring, or misunderstanding on the part of the Appellant.

[24] In his testimony, Mr. Jack did not comment on the Appellant’s eyes, nor his speech or walking. However, Mr. Jack did state that he asked the Appellant how much he had been drinking, to which the Appellant responded: “Why would you ask that?” Mr. Jack told the Appellant that he asked because “normal people don’t drive the way that you were driving today”, and informed the Appellant that he nearly ran him off the road. Mr. Jack also asked the Appellant if he was hurt.

[25] In providing a statement to Goodwin, Mr. Jack stated that the Appellant was trying to drive the vehicle out of the ditch by reversing it, which was supported by the fact that the reverse lights on the vehicle were still on.

[26] The Trial Judge referred to Bush, at para. 47 in delivering the conviction:

Impairment may be established where the prosecution proves any degree of impairment from slight to great. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road. [Citations omitted.]

[27] Further, the Trial Judge stated as follows:

When I look at the whole of the evidence, I am satisfied beyond a reasonable doubt that there is no other explanation for the manner of the driving or the post-accident behaviour of [the Appellant], but that he was at least slightly impaired. [The Appellant’s] poor judgment exercised in stopping in the middle of the road, waiting, forcing a car to stop, suddenly accelerating, spraying gravel and dirt, up over a hill around a bend and into the ditch at speed when the road sign said, “Caution Winding Narrow Road.”

Standard of Review

[28] The standard of review of an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, and 37, as follows:

a. Questions of law are reviewed for correctness; b. questions of fact will not be overturned without a palpable and overriding error; and c. questions of mixed fact and law lie on a spectrum. If the factual and legal aspects cannot be separated, the “palpable and overriding error” standard applies. If a question of law can be extricated, or the question is closer to the legal end of the spectrum, correctness is used.

[29] It is trite law that an Appellate Court must show deference to a Trial Judge’s findings of fact should be rarely overturned. An appeal is not a retrial, but rather this Court must determine whether there has been an error of law or that the findings of fact are unsustainable. The Supreme Court of Canada discussed the scope of appellate review in R. v. Clark, 2006 SCC 2, [2005] 1 S.C.R. 5, at para. 9, stating that:

Appellate courts may not interfere with the findings of fact made, and factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm”. [Citations omitted.]

[30] In this case, whether the Appellant’s Charter rights have been infringed on the facts as found by the Trial Judge is a question of law. In R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20, the Supreme Court stated that the issue of reasonable and probable grounds is a question of law:

While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. [Citations omitted.]

ISSUE #1: Who bears the onus to prove, on a balance of probabilities, that an accused’s s. 9 rights under the Charter have been breached?

Appellant’s Position

[31] At the trial, the Appellant agreed with the Trial Judge’s suggestion that the onus was on the defence. However, on this appeal, it now argues that the onus is on the Crown. It should be noted that although this issue was not raised in the Notice of Appeal and factum, on consent of the Crown, this Court permitted counsel to argue this issue and provide further case law and written submissions.

Respondent’s Position

[32] The Respondent submits that the leading cases on this issue stand for the proposition that the accused has the onus to satisfy a trial court, on a balance of probabilities, that their rights were violated contrary to s. 9 of the Charter. The only burden on the Crown may be an evidentiary one to show that there were reasonable grounds to arrest an accused.

Legal Principles

[33] Section 9 of the Charter provides the following:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[34] The Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 20, explained that the purpose of s. 9 is “to protect individual liberty from unjustified state interference”. Citing R. v. Collins, [1987] 1 S.C.R. 265, the Court further stated at para. 56 that for a detention to be non-arbitrary, it must be authorized by a law that itself is non-arbitrary.

[35] Firstly, the general principle that determines detention for Charter purposes was set out in R. v. Therens, [1985] 1 S.C.R. 613, at para. 53, where the Court stated that a person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.”

[36] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 2, the Supreme Court found that an accused’s right to be advised of the right to counsel under s. 10(b) of the Charter is engaged at the moment they are detained. However, not every interaction with the police will amount to a detention for the purposes of the Charter, and s. 9 of the Charter does not dictate that police abstain from interacting with the public until they have specific ground to connect an individual to a crime (at para. 23).

[37] At para. 25, the Court in Suberu lays out the principles from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, that is, whether the purposive approach demands under s. 9 and s. 10 of the Charter refers to the suspension of the liberty of an individual by a significant physical or psychological restraint. The Supreme Court held that the onus is on the applicant to show that in the circumstances, he or she was effectively deprived of his or her liberty of choice (Suberu, at para. 28).

[38] In R. v. Hardy, 2015 MBCA 100, 325 C.C.C. (3d) 50, the Manitoba Court of Appeal dismissed an appeal from the decision of a Trial Judge who found that the accused bore the burden of establishing a s. 9 of the Charter breach; however, in this case had failed to do so. The Court confirmed that the Trial Judge was correct in placing the onus on the accused to show that his detention was arbitrary. The Court further stated at para. 4, that in certain circumstances, the Crown’s evidential burden may become engaged during the course of a s. 9 Charter application, though the ultimate burden remains with the accused.

[39] In R. v. Flintoff (1998), 126 C.C.C. (3d) 321 (Ont. C.A.), the Ontario Court of Appeal, allowed an appeal from a conviction where the Accused, after being arrested for impaired driving, was taken to the police station for a breathalyzer test. While at the station he was strip searched in accordance with the station’s policy. In addition to questioning the legality of the search, the Accused argued that he was wrongfully arrested; an argument which the Court held had no merit, as it was merely an assertion that the arrest was unnecessary. At para. 20, the Court stated the burden to show that a violation under s. 9 of the Charter rests with the Appellant. In this case, the Court held, driving while impaired is an arrestable offence under the Criminal Code, R.S.C., 1985, c. C-46, and there were sufficient grounds to justify it (at para. 20).

[40] In R. v. Daley, 2015 ONSC 7367, Fairburn J. (as she then was) following Suberu, reiterated at para. 8, that an accused who argues they have been arbitrarily detained in contravention of s. 9 of the Charter bears the onus of establishing the alleged breaches on a balance of probabilities. If a breach is established, the accused bears the further onus of demonstrating that evidence should be excluded (at para. 11). This is done on a balance of probabilities, having regard to all of the circumstances, that its admission would bring the administration of justice into disrepute (at para. 11).

[41] In R. v. Davidson, 2010 ONSC 1508, 75 C.R. (6th) 56, at para. 56, Wilson J. confirmed that the onus is upon the accused to prove a Charter breach and referred to R. v. Collins, 1987 1 S.C.R. 265. In speaking to the determination of whether a s. 9 violation occurred, at para. 56, Wilson J. clarified that “the applicant must demonstrate on a balance of probabilities that he or she was detained.” If a detention is established, the Crown must then satisfy the Court on a balance of probabilities that it was not arbitrary and in violation of the Charter (at para. 56). To do so, Wilson J., relying on the Ontario Court of Appeal decision in R. v. Simpson (1993), 12 O.R. (3d) 182, states at para. 60 that:

In order to show that a detention was not arbitrary, the Crown must show that the police had reasonable grounds to suspect that the individual in question was criminally implicated in the activity being investigated, based on a constellation of objectively discernible facts.

Analysis

[42] This ground of appeal raises a question of law and the standard of review is correctness.

[43] Based on a review of relevant case law, the ultimate burden rests on the accused to demonstrate that his s. 9 Charter rights were violated; however, the analysis also engages the Crown to prove that there were reasonable and probable grounds for a demand under s. 254(2) of the Code, and for an arrest for operation of a vehicle while impaired under s. 253. In other words, the Crown’s evidential burden may become engaged during the course of a s. 9 Charter application.

[44] Following a review of the Trial Judge’s decision in this case, I find that he understood this distinction. The Trial Judge ensured that the Crown had first met their evidentiary burden to show reasonable and probable grounds for the arrest, and then determined whether on the balance of probabilities the Appellant had proven arbitrary detention.

[45] The Trial Judge stated, and counsel for the Appellant agreed, that the onus was on the defence to show that there was a breach of s. 9. An examination of whether the Crown had proved that the officer had reasonable and probable grounds on an evidentiary basis was captured in the Trial Judge’s discussion on the issue.

[46] The Trial Judge comprehensively reviewed the evidence of Quinlan and Goodwin, and made findings that Goodwin had reasonable and probable grounds to arrest the Appellant. Accordingly, this Court concludes that the Trial Judge turned his mind to the Crown’s onus.

Issue #2: Did the Trial Judge fail to find a breach of the Appellant’s statutory and s. 9 Charter rights?

Appellant’s Position

[47] The Appellant submits that when several officers are involved in an incident, it is the officer who directs them that is required to have reasonable and probable grounds. Only one person makes the arrest, and that person has to have the necessary grounds. He can acquire it from someone else as in Debot but here he argues that he did not pass it to the other officer.

[48] At the voir dire, the defence argued that neither officer had the necessary reasonable or probable grounds to arrest the Appellant.

Crown’s Position

[49] The Crown relies on R. v. Kirk, 2016 ONSC 6225, which is a case involving uncertainty as to which officer arrested the accused. In that case, the Court found that this uncertainty did not impact on the accused’s s. 9 Charter right to be free from arbitrary detention, and that each officer had sufficient grounds to arrest.

Legal Principles

[50] A review of the law is in this area is warranted.

[51] As stated in Grant, at para. 20, the purpose of s. 9 of the Charter is to protect individual liberty from unjustified state interference, and encompasses freedom of physical restraint and the ability to make decisions free of state interference. The Court elaborates on s. 9 Charter requirements at para. 38:

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence, and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime.

[52] In Grant, the arresting officers conceded that they did not have the requisite legal grounds, nor reasonable suspicion required by law to detain the accused prior to him making incriminating statements. Therefore, finding that the Appellant in that case was detained prior to his arrest, the question for the Court then became whether the detention was “arbitrary” within the meaning of s. 9 of the Charter (at para. 53). The Court described the s. 9 guarantee, at para. 54, as a “manifestation of the general principle, enunciated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice”.

[53] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court of Canada confirmed the existence of a common law police power of investigative detention based on “reasonable suspicion”, and implicitly held that a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9 (at para. 34).

[54] In R. v. Saulnier (1990), 23 M.V.R. (2d) 16, at para. 22, a British Columbia Court of Appeal decision, McEachern C.J.B.C., for the Court stated that:

It would be easier if the accused was staggering drunk, but the absence of some of the more common indicia of drunkenness does not mean that the constable did not have reasonable and probable grounds. It would be improper, once it is objectively determined that sufficient grounds were known to the constable, for us to interfere with the finding made in this connection by the trial judge.

[For similar effect see: R. v. Wang, 2010 ONCA 435, 78 C.R. (6th), at paras. 19-21; R. v. Vollett, 2010 ONSC 6929]

[55] A peace officer is entitled to rely on hearsay in establishing reasonable grounds, see: R. v. Censoni (2001), 22 M.V.R. (4th) 178, at para. 57.

[56] In R. v. Wu, 2015 ONCA 667, 127 O.R. (3d) 494, Epstein J.A. for the Ontario Court of Appeal stated at para 49:

To establish reasonable and probable grounds for arrest, a police officer must subjectively believe that a person has committed or is about to commit an indictable offence, and the police officer must be able to justify that belief on an on objective basis, meaning that a reasonable person placed in the position of the police must be able to conclude that there were reasonable and probable grounds. The police need not demonstrate anything more than reasonable and probable grounds. Specifically the police need not establish a prima facie case for conviction. [Citations omitted.]

[57] In R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A., at para. 21, Doherty J. for the Ontario Court of Appeal provided guidance on the determination of reasonable grounds:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable. [Citations omitted.]

[58] And finally, at para. 48, Doherty J. stated: “The test is whether, objectively, there were reasonable ground to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol”.

[59] In R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 54, of reasonable and probable grounds Durno J. states:

Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered … Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case. [Citations omitted.]

[60] Further, at para. 61, Durno J. explains that a trained police officer is entitled to draw inferences and make deductions drawing on experience. In the circumstances in Bush, the investigating officer had 18 years’ experience, which the Court found that the Trial Judge could take into consideration in assessing whether the officer objectively had reasonable and probable grounds.

[61] Durno J. provided an excellent overview of considerations in play in an analysis regarding reasonable and probable grounds at paras. 54-57:

[Regarding the totality of circumstances which must be considered] …That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case. [Citations omitted.]

In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection." However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable. [Citations omitted.]

An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information. [Citations omitted.]

Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration. They have to be considered along with all the other indicia in light of the fact there may be another explanation. [Citation omitted]

[62] At para. 43, Durno J. referred to Golub, wherein Doherty J. compared information available to a justice on a search warrant, which accords the opportunity for reflection, and contrasted it with that of an officer, who must make their decisions to arrest quickly and “in volatile and rapidly changing situations”.

[63] In R. v. Storrey, 1990 SCR 241 where the Supreme Court found that the appellant’s arrest was lawful and proper as under s. 450 (1) there is a requirement that the arresting officer must subjectively have reasonable and probable grounds on which to base the arrest and in addition these grounds must be justifiable from an objective point of view. The officer does not need to establish a prima facie case for conviction before making the arrest.

Analysis

[64] For the reasons that follow I would dismiss this ground of appeal.

[65] The standard of review on this issue is a question of law and hence engages the standard of correctness.

[66] The Court finds that the Trial Judge did not err in law when he found that the pre-conditions for a lawful s. 254(3) breath demand were met; Goodwin had reasonable and probable grounds to believe that the Appellant had been driving while impaired, and had within the preceding three hours, alcohol in his blood in excess of the legal limit.

[67] In making the arrest, the Trial Judge found that Goodwin had reasonable and probable grounds based on:

• His observations of the Appellant’s glossy eyes, deliberate and slow walking;
• the odour of alcohol;
• information from Quinlan that the Appellant was confused when he produced identification;
• information that the Appellant may have been drinking received from dispatch; and
• that it was an unexplained one-vehicle accident.

[68] The Trial Judge referred to the leading case of Wu, and the specific passage referred to in para. 58 of this decision. In Wu, the Court held that in the context of a breath demand, the reasonable and probable grounds standard is not an onerous test.

[69] In this case, the Trial Judge properly found that there were reasonable and probable grounds and the absence of some indicators does not undermine the finding.

[70] In addition to other leading cases, the Trial Judge considered Bush where the Ontario Court of Appeal found that reasonable and probable grounds to make a demand existed given that an officer may rely on hearsay evidence of a dispatch report. In that case, the report indicated that a citizen had observed erratic driving, there were reasonable and probable grounds to make a demand as the officer could rely on the hearsay evidence of the dispatch report from a citizen that they had observed erratic driving and believed the accused was intoxicated. Before the officer arrived, the accused had crashed his car into a parked truck. The officer noticed an odour of alcohol on the accused’s breath, that his eyes were red and glassy eyes, and that he seemed dazed and unsteady.

[71] In Bush, the officer did not question the Accused about his drinking and arrested him and made a breathalyzer demand within one minute of arriving at the scene. The court held at para. 60, that there is no minimum time period, nor mandatory questioning required before an officer can have reasonable and probable grounds. The Court stated that the issue was not whether the officer could have conducted a more thorough investigation; rather, when the demand was made, whether he had subjectively and objectively reasonable and probable grounds to do so (at para. 70). Such a consideration is dependent upon all the circumstances of the case (at para. 54).

[72] In conclusion, the Court finds that the Trial Judge did not err on this issue and accordingly, this ground of appeal fails.

[73] Given that the Appellant’s arrest was not constitutionally infirm, i.e. that it was based on reasonable and probable grounds and not arbitrary, the Court need not deal with the admissibility questions under s. 24(2) of the Charter.

Issue #3: Did the Trial Judge err in finding Goodwin had reasonable and probable grounds to place the Appellant under arrest?

Analysis

[74] This ground of appeal fails. The Court has addressed this issue and provided reasons in its discussion of Issue #2.

Issue #4: Did the Trial Judge make contradictory findings regarding the two officers who arrived at the scene which were not supported by the evidence?

Appellant’s Position

[75] The Appellant submits that the Trial Judge’s findings regarding the two officers who attended the scene are incompatible based on the evidence.

Respondent’s Position

[76] The Respondent argues that Goodwin and Quinlan played different roles at the time of their arrival at the scene of the accident. It was open to the Trial Judge, based on the evidence before him, to make those findings of fact.

Analysis

[77] Findings of fact are given deference. They should only be overturned if there is an overriding and palpable error on the evidence. The standard on this ground is reasonableness.

[78] For the reasons articulated below, I do not find that the Trial Judge’s findings were unreasonable, nor did he make an overriding and palpable error on the evidence.

[79] It is evident from the evidence that Quinlan did not have comparable experience to Goodwin. Quinlan did not have a good recall of the events, did not keep complete notes like Goodwin, and did not conduct an investigation as one would have expected from an officer when he arrived at a scene, i.e. ask witnesses questions.

[80] The Trial Judge had issues with Quinlan’s credibility, and his findings in that regard are to be given great deference on an appeal; a Trial Judge is in a much better position to make those credibility findings.

[81] Regarding Goodwin, the Trial Judge found that he showed more police experience due to his inquiry regarding who was driving the vehicle as soon as he arrived, his noting of the Appellant’s gait, and that he was astute to the smell of alcohol - at which time he made a demand, placed him under arrest, and gave him his caution and right to counsel.

[82] In R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1, at para. 10, the Court stated that it was not necessary for the Trial Judge to determine who made the demand, as s. 254(3) only requires that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. The Court further stated that “[t]here is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what, where and when” of the demand (at para. 10).

[83] Accordingly, this ground fails as I find the Trial Judge’s findings were reasonable based on the evidence, and there was no overriding or palpable error.

Issue #5: Did the Trial Judge err in finding that the Appellant was driving while impaired beyond a reasonable doubt?

Appellant’s Position

[84] In making a finding of guilt, the Appellant submits that the Trial Judge engaged in speculation, erred in his assessment of the evidence, and misconstrued the evidence. The Appellant also submits that the Trial Judge reversed the onus.

[85] Further, the Appellant argues that the Trial Judge erred in concluding that the offence of impaired driving was the only conclusion that could be drawn from the evidence of Mr. Jack and the observations of the officers. The Appellant suggests that since he lived in the area he was familiar with the roads and could have driven faster than usual.

[86] There was no evidence from Mr. Jack or his son regarding a detection of alcohol from the Appellant. Mr. Jack did not say he had any difficulty understanding him or that he slurred his speech.

[87] Regarding the Appellant’s deliberate gait, there was other evidence that could explain this:

• One shoe was missing; and
• there was a slope (admitted by Quinlan);

[88] Goodwin arrived after Quinlan and noted that the Appellant had only one shoe and walked with a deliberate walk; he does not notice difficulty with his speech, and Quinlan shows him the driver’s licence and then later detects an odour of alcohol emanating from the Appellant. He does not ask the Appellant anything.

Legal Principles

[89] In R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at paras. 225-231, Watt J. for the Ontario Court of Appeal dealt with reasonableness of a verdict:

To decide whether a verdict is unreasonable, we must determine whether the verdict rendered is one that a properly instructed jury or a judge could reasonably have rendered. We must not of course merely substitute our view for that of the trial judge. However, in order to apply the test, we must re-examine and to some extent, within the limit of appellate disadvantage, re-weigh and consider the effect of the evidence adduced at trial. [Citations omitted]

A verdict may also be unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is:

i. plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or ii. incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge. [Citations omitted.]

In considering the reasonableness of the verdict, this court may infer from the appellant’s failure to testify, an inability to provide an innocent explanation. [Citation omitted.]

Second, inferences and claims of unreasonable verdicts.

An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established by evidence adduced at trial. An inference is a conclusion that may, not must, be drawn in the circumstances. A single item or several items of evidence may give rise to more than one inference. It is for the trier of fact, whether judge or jury, to determine what inferences are to be drawn from the evidence taken as a whole and whether the cumulative effect of those inferences satisfies or falls short of the standard of proof required in a criminal case.

Whether a trial judge has drawn the proper inference from a fact or group of facts established by the evidence is a question of fact, as is whether the whole of the evidence is sufficient to establish an essential element of an offence. Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by a trial judge unless those findings and inferences are:

i. clearly wrong; ii. unsupported by the evidence; or iii. otherwise unreasonable.

Any error must be plainly identified and be shown to have affected the result. In other words, the error must be shown to be at once palpable and overriding. [Citations omitted.]

It is of the essence of circumstantial evidence that a single item of evidence may support more than one inference. The same may be said of several items of circumstantial evidence, whether considered individually or assessed cumulatively. That different inferences may be drawn from individual items of evidence, or from the evidence as a whole, does not entitle a reviewing court to re-weigh or recalibrate the evidence by substituting, for a reasonable inference drawn by the trial judge, an equally – or even more – persuasive inference of its own. The task of the reviewing court is to determine whether the inferences drawn by the trial judge are "reasonably supported by the evidence". No more. No less. [Citations omitted.]

[90] In R. v. W.(R.), [1992] 2 S.C.R. 122, at para. 20, the Supreme Court reiterated the principle that appeal courts must re-examine the evidence and should show great deference to findings of credulity made at trial but can overturn a verdict based on credibility where; “after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.”

[91] In R. v. Johnson (1993), 12 O.R. (3d) 340 (C.A.), at para.19, the Court set out the important principle that s. 4(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5, prohibits comments by the prosecutor or the Trial Judge on the failure of the accused to testify, but does not prohibit the trier of fact to draw an adverse inference from such failure in appropriate circumstances.

[92] Arbour J. for the Court stated at paras. 28-29:

On the other hand, in the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt. However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which has been introduced in evidence, if he does not submit himself to cross- examination, the judge or jury may properly draw from that an inference unfavourable to the accused.

In short, judges, like juries, may draw an inference from the failure of the accused to testify, but only in circumstances where the inference is justified. For one thing, if, at the end of the prosecution's case, the evidence is such that a properly instructed jury, acting reasonably, could not convict, the accused is entitled to an acquittal, on a motion to that effect, without having been called to tender a defence, let alone to testify. However, assuming that the prosecution's case is strong enough to survive a motion for a directed verdict, and that there is therefore a case for the defence to answer, it is not always appropriate to draw an inference of guilt from the accused's failure to testify. The inference is linked not only to the strength of the Crown's case, but also to the logical expectation of an innocent explanation which can either come only from the accused, or, as in the case of an alibi, would be strengthened by his oath.

[93] I was referred to the case R. v. Moreno-Baches, [2005] O.T.C. 1001 (S.C.), where Molloy J. set aside the conviction made by the Trial Judge and rendered a verdict of acquittal on the basis that there was another rational explanation for the Appellant’s behaviour and condition. At para. 15, Molloy J. stated:

An inference of impaired ability to drive may be drawn only where the evidence, viewed objectively, is consistent with impairment and inconsistent with any other rational explanation. [Citations omitted.]

[94] However, counsel inadvertently failed to advise this Court that the Court of Appeal at 2007 ONCA 258 overturned her decision (2007 ONCA 258, 43 M.V.R. (5th) 106) and stated the following at paras. 2-4:

In her reasons for judgment, the summary conviction appeal court judge spent a considerable amount of time reviewing the legal test to be applied in determining whether an accused's ability to drive while impaired by alcohol has been proved. We do not propose to delve into her analysis. Suffice it to say that this court’s decision in R. v. Stellato (1993), 78 C.C.C. (3d) 380; aff’d (1994), 90 C.C.C. (3d) 160 (S.C.C.), remains the law in Ontario. That is to say, if there is sufficient evidence before the court to prove that an accused person’s ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty.

In concluding that the verdict in this case was unreasonable (in the sense that it could not be supported by the evidence), we are respectfully of the view that the summary conviction appeal judge overstepped the bounds of her appellate jurisdiction and effectively retried the case. The issue to be decided was not whether, in her view, the evidence at trial led exclusively to the conclusion that the respondent’s ability to drive was impaired by alcohol but whether it was open to the trial judge to come to that conclusion on the whole of the evidence. In that regard, we are all of the view that there was ample evidence supporting the trial judge's finding.

That said, we agree with the summary conviction appeal judge that in finding the respondent guilty, the trial judge erred in failing to even mention, let alone attempt to reconcile, the evidence relied upon by the respondent in support of his position that his ability to drive was not impaired by alcohol. Also, as she noted, the trial judge improperly took into account an inculpatory statement made by the respondent. Those errors, in our view, were sufficiently serious to warrant a new trial.

[95] The Supreme Court of Canada agreed with the above enunciation of principles in two decisions: R. v. Lepage, [1995] 1 S.C.R. 654, at para. 29; R. v. Francois, [1994] 2 S.C.R. 827.

[96] In R. v. Andrews, 1996 ABCA 23, [1996] ABCA 23, 104 C.C.C. (3d) 392, the Alberta Court of Appeal thoroughly discussed the meaning of driving while impaired by alcohol. Citing Stellato, at para. 16, the Court approves the principle that a conviction of impaired driving can be founded on proof beyond a reasonable doubt of slight impairment of the ability to drive. At para. 19, the Court states that “impaired” means a certain degree of drunkenness, and not any minimal degree.

[97] At para. 28, the Court states that the question is whether – on the totality of the accused’s conduct and condition – it can lead to a conclusion other than that his or her ability to drive is impaired to some degree.

[98] At para. 29, Conrad J. said this:

In my view the following general principles emerge in an impaired driving charge:

(1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [Emphasis added.]

Analysis

[99] The standard of review is reasonableness. It is not my role to determine if I would have decided this case differently, but rather I must determine whether it was open to the Trial Judge - based on the evidence – to conclude that there was no reasonable doubt that the Appellant was driving while impaired by alcohol.

[100] Firstly, the Trial Judge comprehensively reviewed the evidence, including the following:

• He accepted Mr. Jack’s evidence as being honest, open, frank, and reliable;
• he noted Mr. Jack’s description of the Appellant’s driving before the accident as being very aggressive;
• relying on Stellato, he found that Mr. Jack’s observations of the Appellant were “consistent with somebody on the road with perception or field of vision, reaction, response time, judgment, regard for the rules of the road who was at least slightly impaired by the consumption of alcohol;
• the conditions, namely, that it was a sunny, dry day and the road was not slippery: “It was in good condition for a gravel, dirt road”;
• he accepted that Mr. Jack was worried that due to the Appellant’s driving, he would run him off the road;
• the Appellant’s driving: inexplicable behaviour of stopping in the middle of the road, fishtailing his vehicle, spraying gravel, and taking off; the Appellant driving himself off the road;
• that Mr. Jack did not observe any other vehicles on the road which ran contrary to the Appellant’s statement to Quinlan that he had been forced off the road by an oncoming vehicle;
• finding that it was a narrow road with a warning sign saying to proceed with caution;
• he inquired as to why the Appellant drove very aggressively as he tried to pass Mr. Jack; why he stopped in the middle of the road approximately ½ km after he passed Mr. Jack; and why he remained stopped in the middle of the road forcing Mr. Jack to stop and wait for him;
• he questioned why the Appellant responded to Mr. Jack sounding his horn by accelerating, fishtailing and spraying gravel, and taking off;
• that there was no disclosure as to why a few seconds later, the Appellant’s vehicle was in the ditch, and that his first words to Mr. Jack were “can you tow me out? I have a tow rope”, to which Mr. Jack responded that his truck would not be able to do it;
• when asked by Mr. Jack whether he had been drinking, the Appellant asked “why do you ask”, to which Mr. Jack responded that it was because of the way he was driving;
• he considered that Goodwin smelled alcohol, and observed glossy eyes and the deliberate way the Appellant walked; and
• that the Appellant was determined to leave the ditch and was evasive to Mr. Jack’s question about whether he had been drinking.

[101] In conclusion, the Trial Judge was satisfied beyond a reasonable doubt that there was no other explanation for the manner of driving, or post-accident behaviour but that the Appellant was impaired. The Trial Judge also stated that the Appellant exercised poor judgment in stopping in the middle of the road, waiting, forcing a car to stop, suddenly accelerating, spraying gravel and dirt, and speeding off over the hill and into a ditch despite the presence of a warning sign reading: “Caution Winding Narrow Road”.

[102] As stated in Stellato, impairment can be established when the prosecution proves any degree of impairment from slight to great. It need not be extreme intoxication nor a “marked departure”. Impairment is an issue of fact. If evidence is so frail to leave a reasonable doubt, the Court must acquit.

[103] It was reasonable for the Trial Judge to draw an inference of guilt from the circumstantial evidence as it was the only reasonable inference that could have been drawn. There were no other reasonable inferences other than guilt. Even though, in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts; the trier of fact could have considered other plausible theories and other reasonable possibilities which are inconsistent with guilt. Although the Crown may need to negative reasonable possibilities, it does not need to disprove every possible conjecture which may be consistent with innocence.

[104] As stated in R. v. Villroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 37, other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[105] The Appellant is suggesting that his aggressive driving could be attributable to him being a resident of the area, and hence familiar with the road; hence, that this happened to be how he was driving that day, and that it does not lead to the inference that he was driving while impaired.

[106] Indeed on this fact alone, there could be another reasonable inference. But when considering the totality of the evidence and the findings of fact made by the Trial Judge, it was reasonable for him to find him guilty.

[107] While there may have been some problematic statements in the Trial Judge’s reasons, when the reasons are read as a whole and these statements are read in their proper context, he made no reversible error.

[108] When his ruling is viewed as a whole, the Trial Judge did not lose sight of the proper process of inference drawing and overall burden of proof. It was for the Trial Judge to decide whether evidence from Mr. Jack and the two officers, when considered in light of human experience, and evidence as a whole and absence of evidence excludes all reasonable inferences other than guilt. I do not find his factual conclusions were based on speculation.

[109] The Trial Judge queried whether there were explanations for some of the facts, including the aggressive driving, stopping, acceleration, fishtailing, etc. In doing so, the Trial Judge is reviewing the evidence in order to determine if there is another reasonable inference that can be taken from this evidence.

[110] It has been found by the Court of Appeal, on many occasions, that Trial Judges are entitled to treat the Appellant’s failure to testify as an inability to provide an innocent explanation for their conduct: R. v. Dell (2005), 194 C.C.C. (3d) 321, at para. 35 (Ont. C.A.), leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 524.

[111] The Trial Judge concluded that he was satisfied beyond a reasonable doubt that there was no other reasonable inference to be drawn from the facts of this case, other that the Appellant was impaired while driving. I find no palpable and overriding error.

[112] Accordingly, this appeal is dismissed.

Justice A. Doyle Date: 2018/12/04