COURT FILE NO.: 15-6511
DATE: 20180131
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and -
MILAN PERLIC
Appellant
BEFORE: Ricchetti, J.
COUNSEL: Patrick Quilty, for the Crown
Lisa Jorgensen, for the Appellant
HEARD: December 18, 2017
SUMMARY CONVICTION APPEAL JUDGMENT
(on Appeal from the verdict of Justice K. Hawke of the Ontario Court of Justice dated March 24, 2017)
THE APPEAL
[1] Mr. Perlic was charged with operating a motor vehicle while having over 80 mgs of alcohol in 100 mls of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.
[2] After a trial before Justice Hawke, Mr. Perlic was acquitted on March 24, 2017.
[3] The Crown appeals.
THE FACTS
[4] The facts are not contested.
[5] Mr. Perlic attended at an LCBO on May 19, 2015 at about 12:45 in the afternoon.
[6] Constable Nicholson was in a vehicle in the parking lot.
[7] Constable Nicholson observed Mr. Perlic exit his vehicle, go into the LCBO and a short time later exit the LCBO. While Mr. Perlic was inside the LCBO, Constable Nicholson ran Mr. Perlic's vehicle's license plate. It is unclear whether Constable Nicholson also ran other inquiries such as CPIC.
[8] Mr. Perlic drove off the LCBO parking lot. Constable Nicholson chose to follow and stop Mr. Perlic. Mr. Perlic was stopped at 1:14 pm. Constable Nicholson testified his decision to do so was at "random" choice selection.
[9] Mr. Nicholson smelled alcohol on Mr. Perlic's breath. He administered the roadside screening device. Mr. Perlic failed. Mr. Perlic was arrested. A demand for a breath sample was made. Officer Nicholson was also the breath technician who conducted the breathalyzer testing at the police station. Officer Nicholson testified that the readings were 138 and 136 milligrams of alcohol in 100 mls of blood.
[10] Mr. Perlic was charged.
THE TRIAL
[11] The Defence alleged that Mr. Perlic's s. 9 of the Charter rights had been violated.
[12] The sole witness at trial was Constable Nicholson.
[13] At trial, the randomness of the traffic stop was the key issue, including an allegation that Officer Nicholson had racially profiled Mr. Perlic.
[14] The trial judge rejected the submission that Officer Nicholson had racially profiled Mr. Perlic.
[15] That left the sole issue for trial whether the stop was random or arbitrary.
[16] The trial judge stated:
Constable Nicholson asserted many times that the stop of the defendant was random. However, he did not give any evidence of the method that he used to achieve randomness....
...It needs to be highlighted however that the narrowing of the field of drivers to those leaving an LCBO does not exemplify randomness. Rather it is a justifiable level of non-randomness. Naturally then it is not evidence to support the selection of any individual as being random.
.... Given that he was close enough to read the plates, surely, he was also be close enough to make observations of the drivers in the middle of the day, in the month of May. ..
These aspects of the evidence do not exemplify any presumption towards randomness either. ...
Constable Nicholson either could not or would not specify how he switched his focus on the subgroup over to a random selection of a member of the subgroup. ...
..I don't know what his criteria might have been, but I do know that Constable Nicholson is very successful at apprehending those who drink and drive.
With Peel Police, there is an award given to a small group of officers every year, and the award to officers who apprehend those who drink and drive. These are the Matt Parr Awards. These awards are publicized on Peel Police website and also in public reports. For many years, the list include the number of arrests with each officer's name. In more recent years, the site describes the award as recognizing "the effort of officers who effectively apprehend impaired drivers", and after that description there is a non- alphabetical list.
For 2014/2015, awards for example, the first person on the list of eight officers is Constable Nicholson. I checked the reports online and he was on the list for 2012 and 2013 as well. Those are separate years, not linked yeas the way 2014 and 2015 went. I didn't search any further back but over the years given my duties both as a judge and an administrative judge, I checked the site and quite frankly for as many years as I can remember, Constable Nicholson has been on the list."
Given that Constable Nicholson spends much of his time indoors doing the testing for other officers and attending court, it is apparent that he is quite efficient at making apprehension when he is on the road in order to continue an award winning level for apprehension year after year. If he doesn't want to talk about how he sizes people up and how he decides who to stop, that is up to him, but I don't accept that in the circumstances of this case that it was exclusively a random process without some record being made at the time and evidence brought to court about how the suggested randomness was achieved. There is no evidence in this case that articulates how the selection may have been random. The bald assertion that it was, is not supported by all the surrounding circumstances, and the surrounding circumstances on an overall basis point in the opposite direction, commencing with the selection of the subgroup and then with the investigation of plates, and that was followed by the observation of the drivers.
For the reasons outlined above, I find on a balance of probabilities, that the stop was not random...
[On the 23(2) Charter analysis] The next point I consider is the fact the officer in this case is very experienced and knew what was expected, but nonetheless for reasons not known to me, he did not think he had any obligation to be transparent about his decision making process. He did not have any sense of obligation to record his actions, or describe his actions on the issue of stopping and detaining the defendant. The reasons for the stop are just as important in this case as in the other style of case where there is articulable cause such as bad driving.
In the circumstances, I am unable to find that the officer acted in good faith. ...
I have considered and balance the three factors above and I conclude that the breath readings will be excluded as their admission would bring the administration of justice into disrepute. In the circumstances of Mr. Perlic's case, I conclude that in order to ensure the long term repute of the justice system, the court needs to dissociate itself from police conduct of this nature that ignore the goal of preventing arbitrary detention. ..
In this case, the need for the court to disassociate itself from the police conduct is relevant to factors one and two above is greater than society's interest in prosecuting the defendant and on a balance then I find that the evidence should be excluded.
(emphasis added)
[17] The trial judge acquitted Mr. Perlic.
THE ANALYSIS
The Appeal Issues
[18] The primary issue raised by the Crown is that the trial judge erred in finding the traffic stop was an arbitrary detention. In other words, Officer Nicholson did not randomly stop Mr. Perlic that day.
[19] The Defence submits that there was sufficient facts for the trial judge to have come to this finding and this court should show considerable deference to the trial judge's findings.
The Appeal Hearing
[20] A copy of trial judge's reasons were not included in the Appeal book or materials.
[21] At the commencement of the appeal hearing, the court was provided with a copy of the trial judge's reasons. The parties proceeded to make submissions on the appeal.
[22] It was clear that the trial judge's credibility analysis of Officer Nicholson was critical to the trial judge's findings both on whether there was a breach of the Charter and whether the evidence should be excluded.
Post Appeal Hearing
[23] After the hearing, this court carefully reviewed the reasons of the trial judge. It became apparent that the trial judge, potentially had reviewed and considered extraneous evidence in relation to Officer Nicholson which may not have been in evidence at the trial (as it could not be found in the trial transcripts by this court).
[24] This court wrote to counsel inviting them to identify the location of such evidence in the trial transcripts and, if it was extraneous information, to make submissions on "on the significance, if any, of Justice Hawke's reference to this evidence, if it was not in the record."
[25] Counsel agreed to make further submissions in writing. Submissions were received.
[26] This court agrees that the Crown's supplementary submissions go beyond the narrow issue identified by the court - the existence and impact of the extraneous information. Suffice to say the Crown seeks a new trial because "she relied on facts not in evidence in coming to her conclusion."
[27] The Respondent conceded that the evidence in the above emphasized quotes from the reasons, was not in evidence. The Respondent submitted that:
a) The trial judge could take judicial notice of the extraneous information;
b) Was factually correct; and
c) The information is of minimal legal significance.
Judicial Notice
[28] It is basic that a trial judge may only rely upon the evidence presented at trial, except where judicial notice may be taken. In R. v. R.S.M., 1999 BCCA 218, 1999 BCCA 0218 Mr. Justice Finch (later C.J.B.C.) succinctly observed:
[20] In my respectful view, there is no merit in the appellant’s argument on this ground of appeal. The trial judge had to decide the case on the evidence that was adduced at trial and on his view of its reliability. Judges often have less evidence than they might wish to have, but they are required to try the case on the evidence that counsel puts before the Court.
See also, R. v. Cloutier, 2011 ONCA 484.
[29] The Respondent submits that the extraneous information was "uncontroversial and sufficiently widely known in the Peel Region as to be something of which she could have taken judicial notice".
[30] Judicial notice, of course, is limited to facts that are notorious or generally beyond debate or are capable of immediate and accurate demonstration from readily accessible sources of indisputable accuracy: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458. As pointed out by Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at p. 1055, the judicial notice doctrine applies to: "Facts which are (a) so notorious as not to be the subject of dispute among reasonable persons, or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by any party."
[31] Simply because some persons in the community may have read these articles in the Peel Police website or read an article in some newspaper, does not mean the fact is "notorious" or of "indisputable accuracy".
[32] The trial judge stated she was aware of this information because she was a judge and administrative judge. That statement does not assist in the notoriety or indisputable accuracy of the information. The public are not judges.
[33] The extraneous information fails to meet the appropriate test for judicial notice.
[34] The trial judge could not have relied on the extraneous information on the basis of judicial notice.
Factually Correct
[35] Dealing with the "factually correct" submission, the Respondent proceeded to attach copies of certain websites as evidence that what the trial judge considered was accurate. This submission entirely misses the point. Trial judges cannot rely on information or evidence not adduced and tested at trial.
[36] The appendices to the Respondent's submission is not and cannot be evidence on this appeal. Attaching the extraneous information or copies of the website to Respondent's submission does not assist since this was NOT evidence at trial. This extraneous evidence could not and should not have been considered by the trial judge in assessing the witness' evidence.
Legal Significance
[37] As described in R. v. Bornyk, 2015 BCCA 28, considering extraneous information constitutes an error of law.
[6] Before us, the Crown contends the judge erred in law in two ways. First, the Crown says the judge erred in relying upon independently researched literature that was not properly introduced by either party, not tested in evidence, and not put to the fingerprint witness. Second, the Crown contends the judge erred by engaging in his own unguided comparison of the latent print and known print. Both of these questions concern the assessment of evidence on wrong legal principles, and are questions of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197. Thus they are properly appealable by the Crown. Counsel for Mr. Bornyk does not contend otherwise.
[38] The most important question is whether this extraneous information could have affected the trial judge's decision. If the extraneous information could have affected the trial judge's decision, the trial was unfair and a new trial should be ordered.
[39] The significance of the extraneous information must be considered in light of the fact this was a one witness trial and the fact that the assessment of Officer Nicholson was critical to the central issues: whether the traffic stop was random and whether the breath analysis should be excluded under a section 24(2) analysis.
[40] The extraneous information was considered significant enough for the trial judge to include reference to it in her reason. The extent to which the extraneous information could or did impact the trial judge's assessment of Officer Nicholson's evidence cannot be ascertained on this appeal.
[41] This court is satisfied that the extraneous evidence could have affected the trial judge's assessment of Officer's Nicholson's evidence on the central issues to be decided.
Conclusion
[42] The trial judge committed an error of law in considering the extraneous information. The acquittal is set aside and a new trial is ordered before a different judge.
Ricchetti, J.
Date: January 31, 2018
COURT FILE NO.: 15-6511
DATE: 20180131
BETWEEN:
HER MAJESTY THE QUEEN Respondent
AND
MILAN PERLIC Appellant
COUNSEL: Patrick Quilty, for the Crown Lisa Jorgensen, for the Applicant
SUMMARY CONVICTION APPEAL JUDGMENT
(on Appeal from the verdict of Justice K. Hawke of the Ontario Court of Justice dated March 24, 2017)
Ricchetti, J.
Released: January 31, 2018