Court File and Parties

Court File No.: CR-17-10000114-00AP Date: 2018-12-13 Ontario Superior Court of Justice

Between: Andre Hidi, Appellant Stephen Price, for Mr Hidi

And: Her Majesty the Queen, Respondent Melissa Mandel, for the Crown

Judgment

D.L. Corbett J.:

[1] Andre Hidi appeals from the decision of Knazan J. of the Ontario Court of Justice dated September 28, 2017, finding the appellant guilty of impaired operation of a motor vehicle. At the conclusion of oral argument, in a brief handwritten endorsement, I dismissed the appeal with these reasons to follow.

[2] Mr Hidi was observed by an off-duty police officer driving “horribly” on the Gardiner Expressway on April 17, 2014. The off-duty officer called police and on-duty officers intercepted Mr Hidi and took him into custody. Breathalyser data was obtained but was excluded by the trial judge. Thus the issue for trial was whether the Crown could establish beyond a reasonable doubt impaired operation from the observations of police officers and any other evidence presented during the trial.

[3] The trial judge accepted the evidence of the off-duty officer, Detective Thompson, who the trial judge found to be fair and moderate in his testimony. Detective Thompson was in an excellent position to observe the appellant’s driving, and he witnessed the following:

• Mr Hidi’s vehicle contacted the guardian median of the highway, came to a stop in a traffic lane, then pulled away, and continued on;
• Mr Hidi’s vehicle came to a full stop on the highway, in a traffic lane, on a second occasion;
• Mr Hidi’s vehicle changed lanes frequently in a manner the officer described as “veering” between lanes; and
• Mr Hidi’s vehicle signaled turns erratically, signaling left and then changing lanes right, and signaling right and then changing lanes left.

To the experienced eye of the officer, Mr Hidi’s vehicle was being driven in a manner that was dangerous and reflected the behavior of a driver who was impaired.

[4] When police intercepted Mr Hidi and took him into custody, they noted an odour of alcohol on his breath. Police agreed in cross examination that Mr Hidi was not displaying signs of extreme intoxication, such as inability to maintain motor control walking or difficulty performing simple motor control tasks such as tendering his driver’s license. The off-duty officer detected a sway to Mr Hidi’s gait as he walked to the scout car, an observation the trial judge found to be available to the officer on the trial judge’s review of the video evidence.

[5] Mr Hidi testified that he had been drinking alcohol several hours earlier in the evening, but said that he had returned to work after spending time with friends at a bar. He testified that he had been very tired, and his driving may have suffered as a result. He also testified that he has a “bad habit” of using his cellphone while driving. He dropped the phone, and contacted the median slightly when he tried to retrieve the phone from the floor of the car. He denied any impairment from alcohol and attributed the problems with his driving, which he characterized as less serious than as described by Detective Thompson, to a combination of fatigue and distraction.

[6] The trial judge found Mr Hidi to be sincere and largely credible, but preferred the evidence of Detective Thompson in respect to Mr Hidi’s driving. The trial judge apparently accepted that fatigue and distraction may have played a role in events, but he also concluded that impairment was a contributing factor – both in terms of the “horrible” driving seen by Detective Thompson, and in terms of the impaired judgment that may have led Mr Hidi to use his cellphone when he was so tired, and then to try to retrieve it from the floor of his vehicle while driving along a high speed highway. The trial judge was convinced beyond a reasonable doubt that impairment by alcohol was a contributing factor to the “horrible” driving witnessed by Detective Thompson, and so found Mr Hidi guilty.

[7] Mr Hidi raises five grounds of appeal:

a. The trial judge erred in law in “misinterpreting” some parts of the evidence and “completely disregarding” other parts of the evidence; b. The trial judge erred in convicting the appellant when “a good deal of the evidence was inconsistent with impairment”; c. The trial judge erred in distinguishing the case of R. v. Singh, [1997] OJ No. 1164 (Ont. Sup. Ct.); d. The trial judge erred in preferring the evidence of Detective Thompson to the evidence of Mr Hidi regarding the driving; e. The trial judge erred in rejecting the appellant’s explanation for his aberrant driving, which should have raised a reasonable doubt of guilt.

[8] As summarized in the grounds of appeal, this is largely a fact-driven appeal (Grounds a., b. and d.). The trial judge is entitled to deference on appeal for his factual findings and findings of credibility. The findings made by the trial judge were available on the evidence. The appellant’s horrible driving was not accounted for solely on the basis of fatigue and momentary distraction. There was sustained horrible driving on a major public highway in a manner which created hazard for the appellant and for other drivers on that road. Fatigue and distraction may have played a role, but so too did impairment.

[9] The trial judge was correct in stating that horrible driving, where there is evidence of alcohol consumption, such as that witnessed by the off-duty officer, can give rise to an inference of impairment. When there is an odour of alcohol and the accused testifies to consumption of a material (though uncertain) amount of alcohol, the inference becomes more irresistible.

[10] This case was not a close call: there was substantial evidence to support the trial judge’s conclusion and the appellant’s sincere but self-serving belief that his drinking was not the problem was not sufficient to raise a reasonable doubt. A trial judge is not required to state and reconcile every piece of evidence, though, that said, this trial judge’s thorough reasons did address all the major issues in the case, and included cogent reasons for the findings of credibility and the trial judge’s factual conclusions: in sum, the trial judge accepted the evidence of Detective Thompspn as to what he saw, placed this in the context of evidence of alcohol consumption, reasoned that the explanation offered by Mr Hidi was not “inconsistent” with impairment, and drew the obvious conclusion.

[11] The standard of appellate review “does not permit the appellate court to simply retry the case, or give effect to any vague unease, or any lurking... doubt it may have based on its own review of the record.” R. v. Melo, 2013 ONSC 4338, 286 CRR (2d) 343, para. 41, per K.L. Campbell J. As stated by the Supreme Court of Canada more than twenty years ago:

In proceeding under s.686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it…. Provided this threshold is met the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. R. v. Burns, [1994] 1 SCR 656, para. 14, per McLachlin J. (as she then was).

The trial judge’s conclusion was reasonably available on the evidence at trial; there is no basis for appellate intervention.

[12] In respect to Ground c. on appeal, the trial judge’s use of R. v. Singh, [1997] OJ No. 1164 (Ont. Sup. Ct.), I note as follows. In Singh, LeSage J. (as he then was), found that the court could be left with a reasonable doubt of impairment where there is “horrible” driving but evidence that is “inconsistent” with impairment, such as the accused’s fine motor control observed after being apprehended at the scene and at the police station. As noted by the trial judge, Singh is good law and is binding on the trial judge. However, although Singh is good law, it is not much law. Of course “horrible” driving does not create an unrebuttable presumption of impairment: the trial judge must consider all of the evidence to decide whether the strong basis for drawing an inference of impairment is established beyond a reasonable doubt.

[13] Singh was a brief oral judgment on a summary conviction appeal, clearly not intended to establish an analytical framework or set out some new or important principle of law for the benefit of the courts below. In that brief judgment, LeSage J. does not provide details of the “horrible” driving in the case before him, and provides only a brief summary of evidence that he considered “inconsistent” with an inference of impairment. In the absence of a detailed statement of the facts leading to the court’s conclusion, or a thorough-going treatment of the principles involved, the case should be viewed as no more than an example of the principle that “horrible” driving does not give rise to an unrebuttable presumption of impairment.

[14] S.B. Durno J. has reviewed this point in R. v. Kumric as follows:

While in virtually every impaired driving prosecution the arresting officer or civilians give evidence about the “usual signs of impairment’; slurred speech, unsteadiness on the feet, bloodshot eyes etc., there is nothing to prevent a trial judge from finding guilt in their absence. The trial judge is required to look at all of the evidence and determine if the Crown has established the offence to the degree of certainty required in a criminal prosecution. Where there are no or few overt signs of impairment, a trial judge could conclude that their absence lead to a reasonable doubt because of the absence of evidence…. That is not the same thing as saying that the absence of overt signs must lead to a reasonable doubt. R. v. Kumric, (2006), 42 MVR (5th) 241, para. 23, per S.B. Durno J.

… There is no authority I am aware of that would support the contention that reduced ability to perform complex tasks, whether impacting on perception, field of vision, reaction time or response time, judgment, regard to the road, and the like, must be accompanied by overt symptoms of impairment…. R. v. Kumric, (2006), 42 MVR (5th) 241, para. 28, per S.B. Durno J.

[15] Kumeric provides a much stronger jurisprudential analysis than does Singh, and is a better starting point for analysis: Singh is better read as a footnote to Kumeric rather than a broad statement of principle. R. v. Kumric, (2006), 42 MVR (5th) 241, paras. 29-30, per S.B. Durno J.

[16] The trial judge distinguished Singh on the basis of the sustained “horrible” driving by Mr Hidi – not one momentary episode but several indications of impairment, together with the odour of alcohol, the evidence of slight swaying while walking and Mr Hidi’s own testimony about his alcohol consumption. Evidence that Mr Hidi was not acting as a person who was severely intoxicated does not constitute evidence “inconsistent” with impairment: an ability to walk without falling down or swaying, or to do simple tasks such as tender identification or to speak clearly without slurring, or periods of unremarkable driving, do not constitute evidence of impairment, of course, but neither are they evidence “inconsistent” with impairment: the complex task of driving can be impaired – as to judgment, reaction time, perception, concentration, and motor control – even when there are no clear signs of impairment aside from the “horrible” driving itself. See R. v. Censoni (2001), 22 MVR (4th) 178 (SCJ), per Hill J., R. v. Linstead, [1998] OJ No. 2950 (Gen Div) per Langdon J.

[17] On the analysis in Kumric, which I adopt, the trial judge was right. Elevating Singh to a broad statement of principle, which I would not do, the trial judge properly distinguished it. Using either approach, the trial judge’s decision respects the controlling legal principles.

[18] Finally, in respect to Ground e. on appeal, the trial judge did not err in his analysis of the second prong of R. v. W.(D.), [1991] 1 SCR 742. The trial judge was not required to, and clearly did not, place any weight on Mr Hidi’s self-serving analysis of the true “cause” of his horrible driving. Mr Hidi’s “explanation” – fatigue and distraction by cellphone – do not negate the inference that Mr Hidi was impaired by alcohol, and Mr Hidi’s opinion to the contrary is not a basis for reasonable doubt: part of the problem with drinking and driving is that far too many people seem to believe that they are “alright” and “fine” to drive a car when they are impaired.

[19] The appeal is dismissed.

D.L. Corbett J.

Released: December 13, 2018