COURT FILE NO.: AP-18-89 DATE: 2018-12-04
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN J. McKenzie, for the Crown Respondent
- and -
ALISA CHALY Self-Represented Appellant
HEARD: October 24, 2018
REASONS FOR JUDGMENT
(On appeal from the Judgment of the Honourable Justice Gage)
A.J. GOODMAN J. :
[1] This is an appeal brought by the appellant against convictions imposed on April 24, 2018 by Gage J. of the Ontario Court of Justice at Hamilton, Ontario.
[2] Following a three day trial, the appellant, Alisa Chaly (“Chaly”) was acquitted on a charge of impaired driving and convicted on counts related to her refusal to provide a suitable breath sample and a breach of recognizance, contrary to their respective Criminal Code provisions.
[3] In the Notice of Appeal and factum, the appellant raised 10 grounds of appeal.
[4] The appellant represented herself both at trial and during the course of submissions on this appeal.
Evidence at trial
[5] On April 15, 2016, as a result of a citizen’s complaint about erratic driving, Constable Suffoletta (“Suffoletta”) was dispatched to look for the appellant’s vehicle. He found it stopped at a red light. As the light turned green, he saw the appellant’s vehicle “peel out, at an accelerated rate of speed,” with its engine racing. At approximately 5:00 p.m., the officer initiated a traffic stop.
[6] Suffoletta spoke with Chaly, who was the driver and the only occupant of the suspect vehicle. He advised of the reason for the traffic stop. In speaking with Chaly, he noted the following indicia of impairment: glossy eyes that were slow to focus; an odour of an alcoholic beverage on her breath; slow and slurred speech. During this initial stop, Chaly repeatedly asking the officer for the grounds for the vehicle stop.
[7] Suffoletta had a strong suspicion at this point that the appellant was impaired, but wanted to investigate further to “see if it was going to go to a belief of impairment.” He advised Chaly he could smell alcohol on her breath. The appellant initially denied drinking alcohol, then stated she last drank “last week,” and later stated she could not remember when she last drank alcohol. The officer also observed a box of Pellar Estates wine in the back seat of the vehicle.
[8] At this point, Suffoletta’s belief crystalized that Chaly was operating a motor vehicle while impaired by alcohol given the odour of alcohol on her breath, the reported erratic driving, the presence of a wine box in the back seat, her inconsistent statements along with the other noted indicia of impairment.
[9] Upon arriving at the reasonable and probable grounds for the arrest, the officer requested Chaly step out of her vehicle. The appellant repeatedly asked Suffoletta to provide his grounds for the traffic stop, the investigation, and why she was being asked to step out of the car. Chaly refused to open the door or exit the vehicle. She crossed her arms and said “no,” when demanded she exit the vehicle.
[10] Suffoletta had to open the door, un-buckle the seatbelt, turn off the vehicle, and physically remove Chaly. On the way back to the cruiser, Chaly was observed to be “very unsteady on her feet” and was swaying on level ground.
[11] Once seated in the cruiser, at 5:21 p.m., the appellant was formally arrested for impaired operation of a motor vehicle. The officer read the police caution. When asked if she understood, the appellant continued to ask why she was being detained. Suffoletta read the Rights to Counsel (“RTC”) from his notebook, and asked if the appellant understood. Chaly stated she understood the Caution and RTC, but that she would not provide a name of a lawyer. During this time, the appellant was belligerent, aggressive, hostile, and generally upset at the officer.
[12] At 5:23 p.m., Suffoletta read the breath demand to Chaly directly from the officer’s notebook. Chaly immediately indicated she would be refusing to provide a breath sample. Suffoletta asked her again who her lawyer might be and she refused to provide that information.
[13] After arrest, caution, RTC and breath demand, the appellant indicated she had medical issues that required medication. The officer searched her vehicle and several bags within her vehicle, but could not locate any medication. When the officer asked her where the medication was, she refused to provide any further information about the location of medication or the nature of the medical condition.
[14] During the ride to the police station, Chaly continued to question the officer on his grounds for “detainment” and grounds for the initial traffic stop. The officer continued to answer her questions and remind her of his grounds and the reason for the arrest. The appellant asserted that the arrest was unlawful, the officer was violating her Charter rights and her belief the charges would be thrown out. Her demeanour continued being belligerent and upset.
[15] At the station, the appellant was given multiple opportunities to speak to a lawyer or duty counsel. She did not speak with a lawyer, duty counsel or provide the name of a counsel of choice. The appellant remained belligerent and confrontational in the booking area.
[16] Suffoletta provided his grounds for the demand to the qualified breath technician, Constable Paterson, (“Paterson”) who was satisfied with the grounds.
[17] Paterson turned on the video equipment approximately 10 minutes be- fore the appellant was brought into the breath room because she was “quite non- compliant in the custody booking procedure…and subsequent search.”
[18] Chaly remained belligerent in the breath room and at one point during the Intoxilyzer procedure, Paterson had to raise his voice stating “let me talk” because she kept talking over his instructions. At that point, he was issuing the caution to a charged person and the secondary caution.
[19] Paterson was very patient with Chaly and spoke with her at great length and explained the consequences of refusing to provide a breath sample. He asked her if she wanted a lawyer at least eight times and read the formal RTC once. She declined to answer in the affirmative or did not answer at all.
[20] Chaly was likewise non-compliant with providing a breath sample. Although provided ample opportunity to provide a sample, it became obvious the appellant would not provide one. The videotaped recording of the entirety of the events in the breath room was entered as evidence at trial. The appellant was charged with refusing to provide a breath sample.
[21] Based on his observations and interactions with Chaly, Paterson determined the appellant was impaired by alcohol and ought not to be driving a motor vehicle as she would not be able to do it safely.
[22] Suffoletta denied telling Chaly that if she refused to sign the paperwork after being charged, she would not be released. Neither he nor Paterson were present when the appellant was released. They took no part in the decision to release her and do not know when she was released.
[23] The appellant testified in her own defence. She is a university graduate who has done some training as a paralegal. She brought medical reports to court that she wished to file without notice. When she was not allowed to file the reports, she was able to testify fully about her physical, mental and emotional issues before the trial judge.
[24] The appellant acknowledged that she regularly speeds, cuts in between cars, argues with other drivers and has been charged with numerous HTA offences in the past. She acknowledged driving aggressively through the streets of Hamilton on the day of the offence, and admitted being angry that the civilian witness was following her.
[25] Chaly also acknowledged becoming confrontational with Suffoletta when he pulled her over for her erratic driving. She acknowledged that he requested she get out of her vehicle, but she felt she did not have to comply. Chaly acknowledged that Suffoletta arrested her for impaired driving and demanded a sample of her breath, but she was not really paying attention. She does not know if she refused to provide the breath sample right there, but admitted she could have. She accepted that the box of wine was in her vehicle and that she had consumed at least a quarter of the box just prior to driving that afternoon.
[26] The appellant acknowledged that she did not want to inform Suffoletta that she had consumed alcohol when he asked her, and she did not know if she was obligated to tell him. This was her explanation at trial for why she gave contradictory statements on the point.
[27] Chaly provided alternate explanations for the indicia of impairment noted by the officers, such as: wearing contacts could have caused her glossy eyes, it was hot out to explain the flushing, and her medical injuries could explain why she might have stumbled getting out of the vehicle. She did not tell either police officer of her physical or mental health issues because she did not think it was anybody’s business, although she did admit asking Suffoletta to retrieve her medication from her vehicle. Chaly testified she is not certain she was actually taking any prescription medication at the time of this incident and she does not know if she had any with her in the vehicle.
[28] When Patterson requested Chaly to blow in the Intoxilyzer, she “thought it was disgusting.” She felt that the demand to provide a breath sample was due to the fact the officers “had it out for her.” She acknowledges being confrontational, “I am confrontational, I’m a confrontational person especially when it comes to police or incidents where I feel to be wronged.”
[29] Chaly testified that the police continuously asked her if she wanted to speak to a lawyer, but she was “keeping her options open” regarding talking to a lawyer. She did not know which lawyer to call or whether she should call duty counsel. She acknowledged being bound by the conditions of the peace bond. She testified that she signed the paperwork presented by Suffoletta only because he told her she would not be released unless she signed it.
Positions of the Parties
[30] The appellant submits that the trial judge committed numerous errors. He misapprehended the evidence and did not give the appellant a full and fair opportunity to present and argue her case.
[31] The appellant submits that this court can and ought to substitute its finding for that of the trial judge as there was an error of law and her convictions are unreasonable.
[32] The Crown submits the convictions were reasonable, supported by the evidence and free from legal error. There was no miscarriage of justice.
Legal Principles
[33] Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence, (b) there was a wrong decision of law or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, an appellate court is not entitled to re-try the case and substitute its view of the evidence.
[34] The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. Rather, the court must thoroughly re-examine and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), [1992] 2 S.C.R. 122. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, [1987] 2 S.C.R. 168.
[35] The test for demonstrating an unreasonable verdict is an exacting one. To succeed, the appellant must demonstrate that the verdict is one that no judge or jury, properly instructed, could reasonably have rendered in the circumstances. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding, or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge.
[36] An appeal court ought to afford great deference to findings of fact made by a trial judge who has had the opportunity to see the witnesses and assess their credibility. An appellate review takes the facts as found by the trial judge and upon a limited review can reject those findings only where it can be shown that the trial judge committed a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable and unsupported by the evidence.
[37] The appeal court is limited to reviewing the findings of fact to determine whether there are clear and manifest errors on the record. The court is entitled to review the evidence but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusions. Appellate courts may only interfere with verdicts if they can clearly articulate the basis upon which they conclude that the verdict is inconsistent with the requirements of a judicial appreciation of the evidence.
[38] In sum, an appellate court’s purpose of re-examining and re-weighing the evidence is not to determine whether the appellate court agrees with the trial judge's verdict, but rather to determine whether the trial judge's verdict is reasonable and can be supported by the evidence.
Application of the Legal Principles to this Case
[39] I will address the various headings of appeal in the order that they present in the appellant’s factum.
A) Justice Gage erred in his determination that Officer Suffoletta had reasonable and probable grounds to make a demand for the breath test.
[40] The appellant submits that Suffoletta was dispatched to investigate “erratic” driving, rather than “impaired driving”. He did not observe any erratic driving himself. He observed the accused stopped at a red light rather than driving. The appellant says that because Suffoletta did not observe any erratic driving, the information could have been inaccurate, and in the absence of knowing that there is an open alcoholic container in the vehicle, his grounds to make a demand were limited to “glossy eyes, slurred speech and an odour of alcohol emanating from her breath” and should therefore be considered insufficient.
[41] Additionally, in this case, the appellant submits that Suffoletta had inadequate experience and training to make reasonable, correct determinations. The investigating officer who formed the grounds had very little experience being a police officer and dealing with impaired drivers. At the time of her arrest, he was a police officer for less than a year and a half after he had completed the training. He testified that his training consisted of one scenario of an impaired driving situation. He also testified he was involved in about 15 impaired driving charges. This also suggests that he had insufficient experience to properly assess and react to certain situations, like when he immediately proceeded to pull her out of the vehicle without previous warning.
[42] It is settled law that in order to make a breath demand, an officer must have reasonable grounds to believe an individual is operating a motor vehicle while his/her ability to do so is impaired. The officer is merely required to have an honestly held belief that the suspect’s ability to drive was even slightly impaired by the consumption of alcohol” and this belief must, in addition, be justifiable from an objective point of view. This test is not an onerous one as police in drinking and driving investigations are involved in making quick but informed decisions. The burden is less than proof beyond a reasonable doubt, a prima facie case, and even on a balance of probabilities. The facts relied upon must be evaluated in the totality of the circumstances, rather than being scrutinized individually against possible alternative explanations. An officer is entitled to rely on second-hand information in formulating his/her grounds for the demand.
[43] In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions drawing on experience. Consequently, a trial judge is to consider and give some weight to the training and experience of the peace officer in determining whether the officer’s subjectively held reasonable and probable grounds are objectively verifiable.
[44] In my opinion, Gage J. provided a detailed, textbook summary of the law on what constitutes reasonable and probable grounds to justify a breath demand.
[45] The trial judge then made the following findings of fact which led to his conclusion that the officer had reasonable grounds to make the demand: knowledge of the reported bad driving and that the civilian’s evidence the driver appeared ‘stoned or drunk’; the odour of alcohol on the accused’s breath; her glossy eyes that were slow to focus; her belligerent and hostile behaviour; the accused repeatedly asked for the grounds for the stop; her inconsistent answers on whether she had consumed any alcohol; and the presence of open alcohol in her vehicle.
[46] It is trite law that a trial judge is entitled to believe all, some or none of a witness’ evidence, and to afford different weight to different parts of the evidence that are accepted. The trial judge is best positioned to assess credibility, having heard all of the evidence, how it was said, and the submissions of counsel.
[47] The trial judge accepted the evidence of the arresting officer and found him to be a credible witness. He was entitled to conclude that where the evidence of Suffoletta and the appellant conflicted, he accepted the evidence of the officer, partially as the appellant testified that her memory was limited because she was so upset.
[48] In her factum, the appellant provided references to certain authorities, for example, R. v. Khanataev, [1998] O.J. NO. 2589 (OCJ) where the driver was seen driving at a grossly excessive speed, dodging in and out of traffic and had flushed red cheeks, glassy eyes and a strong odour of alcohol on his breath, yet the trial judge found that evidence was insufficient to support a s.254(3) demand. Another example was R. v. McClelland, 1995 ABCA 199 where the judge found that evidence of impairment which rested largely on the smell of alcohol on the accused’s breath and the observation of watery eyes with some slurring of speech described as “extremely slim”. Where there was lack of evidence as to difficulty in movement to the police car or in the station, the finding of reasonable grounds was unreasonable.
[49] With respect, these and other cases proffered by the appellant in support of her arguments on all of the issues raised in the appeal are either distinguishable on their specific facts or findings, are not authoritative, or more likely do not represent the current state of the law. [1]
[50] In my opinion, Gage J. correctly stated the law to be applied and dealt with all the required elements of this offence. He had the benefit of the appellant’s Charter Application and authorities, which also dealt with the requirements of a valid demand. He also had the benefit of the Crown’s materials. Though the trial judge may not have specifically itemized the elements of the offence as he was discussing them, he did in fact address all elements and excuses in his judgment. To the extent that he did not, his reasons, read as a whole, sufficiently explain why the appellant was convicted.
[51] The trial judge was entitled to find that the arresting officer had reasonable and probable grounds to make a breath demand, the demand was made as soon as practicable in the circumstances, a valid demand was made, and the appellant refused to provide the validly demanded sample. I am satisfied that the trial judge considered the evidence cumulatively. The trial judge’s verdict was reasonable and amply supported by the evidence heard at trial.
B) Justice Gage erred in his determination that the demand for the breath test was made as soon as practicable.
[52] The appellant submits that although he had formed his grounds to make a demand “fairly early on”, Suffoletta continued to question the accused and extract contradicting/incriminating evidence from her. Suffoletta conversed with the accused for a “fair amount of time” without making a demand. He should have made an ASD demand immediately at the side of the road instead of engaging in an argument with the detainee.
[53] Further, Suffoletta’s reason for pulling Chaly out of her vehicle was “because it was potentially unsafe if she decided to put the vehicle in motion”. Yet at no point in time, the appellant says that she never demonstrated or threatened to do that. Suffoletta did not produce any evidence which would justify such a reaction. The argument that the vehicle was still running and therefore unsafe is suspect and did not require his reaction in such an aggressive manner.
[54] In support of her argument, the appellant cites R. v. Evans 2015 ONCJ 305 at paras. 54 and 55, wherein the officer who pulled the accused over, did not advise him of the reason why he did. It is not until the accused provided the officer with an incriminating statement, that he formed the grounds for his arrest. In this case, the accused was advised that she was being investigated for her “unsafe and erratic” driving and not until making contradictory, uncooperative and incriminating comments did the accused become aware of the nature of Suffoletta’s investigation. The appellant says that there is a huge difference between an “erratic” investigation and an “impaired” one. Both have very different consequences. The detainee has never been in such a situation before.
[55] Again, without delving into each case specifically, the references to the Evans decision and others do not assist the appellant with the specific legal issues raised in this appeal.
[56] The requirement that the breath demand be made as soon as practicable means nothing more than within a reasonably prompt time.
[57] The trial judge found as fact that the appellant persistently refused to exit her vehicle when requested to do so. He found the officer was justified in removing her from the vehicle and lodging her safely in his cruiser before formally arresting her and issuing any rights, caution or demand. He concluded the arrest was conducted in a reasonable and professional manner.
[58] Gage J. correctly found that Chaly’s demonstrative lack of cooperation justified any delay in providing the breath demand. His conclusion as set out in his judgment is as follows:
[t]here is no timeframe that I find to be unexplained. Having regard to all the circumstances, including the demeanour exhibited by Ms. Chaly at the roadside and amplified later in the breath room, provides a sufficient explanation for the delay of roughly 20 minutes…between the traffic stop and the demand.
[59] This finding is entirely reasonable and is amply supported by the evidence.
C) Justice Gage erred in his determination that the accused knowingly waived her right to counsel, and the Crown did not establish a proper waiver.
[60] The appellant says that Gage J. determined that nowhere in the breath-test video did the accused waive her RTC, yet, he accepted Suffoletta’s evidence that she had previously waived that right. This, although Chaly admits that there is evidence that she was “hyperventilating and crying inconsolably” in his cruiser, and hysterical in the booking area after, immediately prior to the breath test demand. Gage J. erred by relying heavily on the booking video, and not taking into account the entire situation, the accused's mental health issues and her emotional state and reactions. It is possible that she was incapable of making a proper decision in whether waiving or exercising her right to counsel.
[61] In support of her position, the appellant cites several authorities. For example, in R. v. Turney, 2000 ABPC 206, the breathalyzer readings were excluded for violation of s. 10 (b) where the Crown failed to establish a valid waiver of the right to counsel. Again, while the proposition of law may be correct, each case is fact specific.
[62] The appellant bore the burden of persuading the trial judge that the police infringed her Charter rights. Gage J. found as a fact that Suffoletta provided the appellant with her RTC at the roadside and that she understood those rights. He found that she was repeatedly provided with that right throughout her time in police custody, including prior to her final failure to provide a breath sample and that she continued to understand that right despite being upset by what she perceived to be authoritarian actions by the police. He found as a fact that “all of those invitations were ignored, talked over or rejected and met with persistent attempts to bargain a release with the officers.” The appellant consciously chose not to exercise that right and did not exercise as “reasonable diligence.”
[63] Despite her submissions, the trial judge accepted that Chaly did waive her rights. The trial judge’s conclusions were reasonable and amply supported by the evidence. He did not err in concluding there was no s. 10(b) breach.
D) Justice Gage erred in his determination that the accused was not arbitrarily detained.
[64] The appellant says that while she was held in the cell, shortly after being brought from the breath test room, Suffoletta brought her a notice of increased penalty and forced her to sign it and threatened otherwise she would not be released. Chaly signed it against her will and without understanding what it was, without the chance to speak to counsel, and out of fear of not being able to go home that night. She submits due to some malice towards her, there were absolutely no grounds to keep her held in a cell after she had been processed and charged. No notes were made by any officers when released. This after she repeatedly advised how important it is for her to be able to go home that night.
[65] Because it was the appellant’s burden to establish this Charter breach, it was incumbent upon her to provide evidence to substantiate the claim that she was arbitrarily detained. Neither the investigating officer nor the breath technician had any evidence on this point. The Crown produced the custody officer and his notes on the second day of trial. The appellant refused to accept those notes. The custody officer would have had the best evidence about how long Chaly was held and why she was held for that period. The appellant herself was vague on how long she was held but indicates she was released later that night. In the end, Gage J. was left with almost no evidence on the point and concluded the appellant was processed with reasonable dispatch. The trial judge found that the appellant had failed to establish any Charter breach.
[66] In the circumstances, this was the only reasonable conclusion. Moreover, it is a reasonable inference to find that a person impaired by alcohol may pose a danger to themselves or the public while still in that state. It is reasonable and prudent to lodge impaired drivers until such a time that they can be released safely back into the community; whether on their own volition or with the assistance of another sober person. Nonetheless, the findings made by the trial judge in relation to this complaint is unassailable.
E) The Crown failed to preserve crucial video evidence of the booking area, and partial recordings should not have been allowed to be submitted at trial.
[67] The appellant alleges she is entitled to a stay of proceedings because the Crown failed to obtain, retain and disclose the booking room video. The Crown failed to preserve the video(s) of the booking area, yet was permitted to use the audio recording of it taken from the breath test room. This has caused prejudice as the booking room video was crucial to the appellant’s defence for the several reasons.
[68] First, the appellant was being accused of “stumbling” and being “unsteady on her feet”, where the video could have proven otherwise. Although acquitted of impaired driving, the appellant could have used it to discredit the civilian witnesses and police’s testimony. Second the appellant alleged mistreatment by police, which could have justified the refusal of the breath test. Next, in the first few minutes of breath test room recording, the appellant is heard crying and screaming “rape!”, which could be viewed as mistreatment and provide supporting evidence of Chaly's mental state.
[69] The appellant says that in the absence of the full booking area video(s), Gage J. should have not allowed the Crown to question the accused whether or not she was being “raped” or any other questions about the recording prior to her entering the breath test room. By doing so, he allowed the Crown to use evidence that should have been preserved, taken out of context and used against the accused rather than supporting her defence. The trial judge stated: “difficulty with examining that particular area is that we don’t have the video to go with the audio and so it’s difficult to draw assumption”.
[70] The appellant adds that while there is a standard retention period after which the booking room video gets deleted, there ought not to be any retention period at all. A defendant should always have the right to request the evidence. With all of the delays within the current court system, a retention period is simply unjustified. In this case, the appellant only became aware of the booking room videos’ existence, after Suffoletta had testified. A self-represented accused relies on the full disclosure being provided by the Crown. If not, it opens up the door for the Crown to withhold crucial evidence and pick and choose what is disclosed.
[71] It is settled law that when evidence is lost or destroyed, the Crown must satisfy the trial judge that such evidence was not available due to unacceptable negligence. If the trial judge finds the loss was a result of unacceptable negligence, the onus shifts to the applicant to demonstrate that actual prejudice resulted from the loss of the evidence and constitutes a breach of s. 7.
[72] The evidence disclosed that booking room videos are routinely retained for six months. If a request for the video is not received within that period of time, they are overwritten. In this case, neither the Crown nor the appellant requested the booking video until the time of trial, which was long past the retention period.
[73] The trial judge was entitled to accept that the booking room video was not requested during the retention period and that the explanation for the retention period policy was reasonable. He found that this was not a case where the video was destroyed or lost through negligence, and the Crown did not breach its duty to disclose. He went on to say that even if that decision is wrong, he found there was no prejudice to the applicant from its loss because he specifically excluded what happened in the booking room from consideration on either charge. Moreover, he held that the evidence about what happened in the booking room was limited and of limited relevance or value. There is no error in that Gage J.’s reasons demonstrate that a stay was not warranted because the appellant did not suffer any actual prejudice. His findings on this issue are reasonable.
F) Justice Gage erred by convicting the accused of breach of recognizance.
[74] The appellant says that because she was acquitted of the impaired driving charge, it was crucial that the issue should have been addressed by the judge. Instead, the accused was convicted as if the breach of recognizance charge was attached to the fail to provide breath sample.
[75] This argument was all but abandoned during final submissions. At the relevant time, the appellant was bound by a peace bond requiring her to keep the peace and be of good behaviour at the time of the predicate offences. It is clear that the evidence supported the fact that the appellant was subject to the terms of a recognizance. The trial judge correctly advised the appellant at the start of the trial that the breach of recognizance charge would either rise or fall with the other charges: if she were convicted of either offence, she would be convicted of the breach, and if she were acquitted of both charges, she would be acquitted of the breach charge as well. There was no legal error in the manner in which the trial judge disposed of this charge and the verdict was not unreasonable.
G) Justice Gage did not address case law provided and cited by the appellant for her Charter application arguments.
[76] The appellant says that Gage J. advised he did not review the USB containing the appellant’s case law, he did not address them in his reasons or advise why they did not apply to the appellant’s case.
[77] The appellant was given an adjournment to file a proper application, which she did. Both parties provided and referred to relevant authorities in their arguments. The trial judge made it clear that he had reviewed these positions and was familiar with the authorities cited.
[78] It is trite law that a trial judge is presumed to know the law. The type of case reflected in this appeal is effectively the “bread and butter” of litigation in the Ontario Court of Justice. The trial judge is a senior and experienced jurist. It is not necessary that he refer to every case presented to him. His reasons reflect a balanced consideration and fair interpretation of the relevant legal principles.
H) Justice Gage should have permitted the medical reports to be submitted by the accused.
[79] The appellant submits that she advised the court of previous encounters with police and how she had been mistreated by them. She also attempted to address that she was a victim of sexual assault in order to establish her grounds for the refusal, but the trial judge took it out of context and treated it as a separate criminal case rather than accepting it as evidence. He advised her not to “get off track” and that “the other person is not here”.
[80] The appellant attempted to submit a report and/or hospital record from a previous wrongful arrest incident, which showed her being mistreated by police in the past, but was not permitted to do so.
[81] I agree with the trial judge that the evidence was not only immaterial but unhelpful to the live issues to be decided.
[82] Nonetheless, while Gage J. denied the appellant’s request to file her documents, she was permitted to testify about her physical, mental and emotional issues. Gage J. accepted that these issues related through her testimony were uncontradicted.
[83] I agree with the Crown that filing the medical or hospital records themselves would have added nothing to the appellant’s case. Even if the trial judge should have allowed the appellant to file her records, there was no substantial harm or miscarriage of justice as a result of allowing her to testify about the very same issues. The trial judge properly considered the evidence and the weight to be afforded to it accordingly. Again, the evidence and medical documents sought to be filed were of marginal relevance.
I) Justice Gage erred in his determination that the accused did not have a reasonable excuse to refuse the breath test; and
J) Justice Gage erred by not applying and/or addressing the elements of the offence of a refusal.
[84] These two issues can be considered in tandem. The appellant says that the demand should be considered invalid because it was made at least 21 minutes after Suffoletta formed his grounds and had ample opportunity to make it. Instead he chose to engage in an argument with the detainee. The appellant submits that she had a valid and reasonable excuse for refusing to provide a sample.
[85] The appellant says that Suffoletta was contacted by dispatch and provided information that led him to begin an investigation of erratic and/or impaired driving. Therefore, he should have made an ASD demand immediately at the side of the road. Suffoletta also admitted he only had a “suspicion” that the accused was impaired and wanted to investigate further.
[86] The appellant refers to the case of R. v. Padda 2015 ONCJ 77 at para 16; “A suspicion would have been enough for an ASD demand, but not for an arrest and a breath demand”. That case is distinguishable on its facts. Again, an ASD demand is not mandatory where, as in this case, the trial judge accepted that the officer had investigated further and had formed his reasonable grounds to demand a breath sample based on the totality of his observations.
[87] For the defence of reasonable excuse to be successful, an accused bears the burden of proving, on a balance of probabilities, both the underlying facts for the excuse and for establishing that those facts were the basis for non- compliance.
[88] A reasonable excuse must be some circumstance which renders compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made.
[89] I agree with the Crown that nothing pointed out by the appellant establishes that the trial judge had drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by him, or is shown to be incompatible with the evidence that has not otherwise been rejected.
[90] The appellant alleged that she was unable to provide a breath sample because she was emotionally distraught. The trial judge had the benefit of viewing the witnesses and viewing the breath video in its entirety.
[91] The trial judge specifically rejected the appellant’s evidence that she was physically or emotionally incapable of providing the sample. Instead, he found that she made a conscious decision to refuse to provide the sample. He found as a fact that the appellant immediately refused to provide a sample upon being read the breath demand in the cruiser, and that this immediate refusal “supports the notion that her later refusal was a conscious continuation of the position that she had adopted immediately after her arrest.”
[92] The breath room video provided ample support that the appellant deliberately refused to provide the demanded breath samples. While there was a half-hearted attempt that did not include putting her lips on the mouthpiece, the trial judge found as a fact that there was a persistent refusal by the appellant to provide the sample based on her “perception that she need not provide a sample because the entire process of her apprehension and arrest was so flawed that the charges would be thrown out”. While accepting that the appellant suffered from physical, mental and emotional issues, Gage J. did not find that those issues made her incapable of providing the demanded breath sample.
[93] In my opinion, the trial judge carefully considered all the evidence presented to him and concluded that a lawful demand for a breath sample was made and the appellant intentionally failed to comply with that demand. Further the trial judge was entitled to find that the appellant failed to establish a reason for not providing a sample, sufficient to constitute a reasonable excuse in law. This was a reasonable finding to make and was amply supported by the evidence and, as such, is entitled to deference.
[94] As the appellant conceded in her final submissions, the trial judge treated her fairly and with respect and courtesy. She reiterated that she had no complaint with the manner in which the trial judge conducted the trial.
[95] I would go further to opine that from my review, it is apparent that the learned trial judge paid close attention to the appellant’s Charter arguments and all of the evidence adduced on behalf of the parties. In the discharge of his judicial function, Gage J. was more than patient and fair with the self-represented appellant in considering her testimony along with the submissions made during the course of the trial.
Conclusion:
[96] For the aforementioned reasons, I am neither persuaded that the verdict was unreasonable nor that Gage J. erred or misapprehended the evidence related to the charges as particularized in the information. The factual findings arrived at by the learned jurist are reasonable and amply supported by the evidence. In summary, I do not find a palpable or overriding error warranting appellate intervention.
[97] The appeal is dismissed.
A.J. Goodman J. Released: December 4, 2018
COURT FILE NO.: AP-18-89 DATE: 2018-12-04 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – ALISA CHALY Appellant REASONS FOR JUDGMENT A.J. Goodman J. Released: December 4, 2018
[1] For the most part, the cases provided by the appellant on the specific pertinent issues are dated; from the lower courts or decisions from courts out of province. While the McIntosh decision is from the Alberta Court of Appeal, it is distinguishable on its facts and application to the issues in this appeal.