Court File and Parties

COURT FILE NO.: 146/16 DATE: 2019-03-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BOZDAR LJILJANIC Appellant

Counsel: Arish Khoorshed, for the Crown J. Fisher, for the Appellant

HEARD: October 24, 2018

REASONS FOR JUDGMENT

D. FITZPATRICK J.

Overview

[1] The appellant appeals against the convictions registered against him by Justice A. Zuraw of the Ontario Court of Justice on November 16, 2016 on a charge of impaired driving and two counts of failing to remain. The following is a summary of the evidence that was before Justice Zuraw.

[2] On September 15, 2015 at approximately 8:00 p.m., a light-coloured Lincoln vehicle was observed driving at a high speed, erratically along the southbound Queen Elizabeth highway in the City of Burlington. The Lincoln almost hit two vehicles, did hit a motorcyclist – ejecting the operator – and then rear-ended another vehicle with sufficient force to compress the trunk space. The damaged Lincoln fled the scene.

[3] A tow truck driver, Mr. Logue, responded to a telephone call from a co-worker and arrived to find a Lincoln with significant damage pulled to the side of the road with one wheel resting on the sidewalk, undriveable. The Lincoln was stopped about ten kilometres from the collision scene and matched the description of the vehicle involved. Mr. Logue testified that the appellant was beside the Lincoln when he arrived, walked towards him and asked Mr. Logue if he was there to tow the vehicle. He observed the appellant lean into the driver’s side of the vehicle twice, as if looking for something. Mr. Logue testified that there was nobody else in or with the Lincoln. Mr. Logue observed the appellant stumbling on the centre median and, initially, he was unresponsive to suggestions that he get off the laneway. He did not smell alcohol from the appellant.

[4] Constable Norio was the arresting officer. He saw the appellant staring at the damaged Lincoln and asked if he was the driver. The appellant answered in the affirmative. Constable Norio asked the appellant to produce his license, insurance and ownership documents. The Officer observed that the appellant appeared slow and unsteady when walking towards the vehicle. Constable Norio noted the appellant fumbling as he attempted to retrieve the requested documents.

[5] Constable Chamberlain arrived at the scene and, initially, spoke with the tow truck driver. The Officer then approached close enough to observe that the appellant had red, watery eyes, slurred speech and PC Chamberlain “could smell the odour of an alcoholic beverage coming from his breath.” Constable Chamberlain informed Constable Norio that the tow truck driver had seen the appellant enter the vehicle. Officer Chamberlain testified that it was “possible” that he also shared his observations of the appellant with Officer Norio.

[6] Constable Norio also testified that, prior to arresting the appellant, “I believe part of the conversation I had with Constable Chamberlain is that he detected the odour of an alcoholic beverage on his breath and he was close by.” Constable Norio did not smell any odour of alcohol from the appellant prior to arrest.

[7] The appellant was arrested and subjected to a breathalyser test where he registered readings of 163 and 153 milligrams of alcohol in 100 milliliters of blood. The appellant asked the technician exercising the breath test what would happen “to my car”. The breath technician asked the appellant if he had been operating a motor vehicle “today” and the appellant responded, “I was, yes”.

[8] In his factum, the appellant notes that he conceded, at trial, that the Lincoln disabled on the side of the road was the same vehicle that was involved in the two prior collisions.

[9] The appellant brought several Charter challenges at trial, including a section 8 challenge alleging there were insufficient grounds for his arrest and sought to have the breathalyser test results excluded. Justice Zuraw dismissed that application.

[10] In his oral reasons, the trial judge concluded that there was “some slight indicia of impairment plus a strong smell of alcohol emanating from the appellant.” He concluded that this evidence, in addition to the observations made directly by Constable Nario, plus what he received from Constable Chamberlain and the tow truck driver, formed his grounds for the arrest.

[11] On the issue of identity, the trial judge found that the appellant was operating the vehicle involved in these incidents. Specifically, Justice Zuraw noted the following:

The appellant asked about the vehicle being towed. He positioned himself partly into the vehicle on two occasions, looking for something. He was concerned enough about the vehicle that he twice asked police what happened to “my car”. He admitted that he had been driving a car in the night in question. No one else was seen in and around the vehicle. The logical inference which can and should be drawn is that the appellant is the operator of the motor vehicle and was in care and control of it until it finally came to rest in a badly damaged state, 10 kilometres from the scene of the offences.

Issues

[12] This appeal raises two issues:

a) That the trial judge erred in finding that Constable Norio had reasonable grounds for the arrest: and,

b) That the trial judge erred by failing to articulate the correct test in making his finding that there was sufficient evidence to identify the appellant as the driver of the Lincoln.

[13] For the reasons set out below, I reject both of the appellant’s arguments.

Reasonable Grounds for Arrest

[14] The appellant’s argument is that Justice Zuraw misapprehended the evidence in ruling that the arresting officer had reasonable grounds for the roadside arrest when the trial judge referenced the presence of a “strong odour” of alcohol. The appellant submits that there would have been insufficient grounds had Justice Zuraw correctly relied upon the trial evidence of an “odour of an alcoholic beverage” along with the other limited indicia that was accepted.

[15] It is without dispute that the trial judge incorrectly referenced the “strong odour” of alcohol in support of his finding that Constable Norio had reasonable grounds for arrest (see pp. 3, 7, of the Reasons). The Crown is therefore correct that this is an appeal of Justice Zuraw’s s. 8 Charter decision.

[16] The Crown argues that this issue is being raised for the first time on appeal. I do not agree. The appellant’s argument is focussed on Justice Zuraw’s error by using the adjective “strong” in reference to the odour of alcohol observed at the scene prior to arrest. This error only became apparent when the trial judge read out his oral reasons. As such, the appellant could hardly have raised the issue at trial.

[17] The Court in R. v. Morrisey (1995), 22 O.R. (3d) 514, cited with approval by the Supreme Court in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 4, notes at para. 24 that a “trial judge’s misapprehension of a part of the evidence does not, standing alone, render his verdicts unreasonable, constitute an error in law, or result in a miscarriage of justice.” The impact of the error must be assessed “in the context of the trial judge’s entire analysis”.

[18] As discussed in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3 at para. 56, “an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment will leave the trial judge’s reasoning…on unsteady ground.” The Court in Sinclair notes that the standard is stringent when determining if there was a material misapprehension of evidence.

[19] I am mindful that the context for Justice Zuraw’s error was in assessing the appellant’s section 8 Charter challenge. In other words, would removing this error leave Justice Zuraw’s reasoning in concluding that Constable Norio had reasonable grounds for arrest “on unsteady grounds”? I cannot say it does.

[20] It is well established that there is a lawful arrest without a warrant where the police officer subjectively believes that there are reasonable and probable grounds for an arrest, and those grounds are objectively justifiable (see s. 495(1) Criminal Code, R.S.C. 1985, c. C-46; R. v. Storrey, 1990 SCC 125, [1990] 1 S.C.R. 241, at para. 17).

[21] Constable Norio testified to relying on:

a) Knowledge of two recent and serious collisions where the damaged, offending vehicle left the scene;

b) Arriving at the subsequent scene to observe a vehicle corresponding to the offending vehicle description, including damage consistent with the collisions and a license plate matching one found at the collision scene;

c) The appellant being the only person in proximity to the vehicle and admitting to being the driver;

d) Information from the tow truck driver that the appellant was leaning in and out of the vehicle;

e) Observing the appellant to be unsteady;

f) Information from Constable Chamberlain that he detected the odour of alcohol from the appellant.

[22] Justice Zuraw correctly reviewed and repeated the above evidence during Crown counsel’s ongoing examination-in-chief of Constable Norio at a point where the trial judge was clearly frustrated with perceived repetitiveness of the questioning.

[23] The above evidence was available to Justice Zuraw when deciding whether Constable Norio had reasonable grounds to arrest the appellant. The trial judge reviewed most of that evidence in his oral reasons.

[24] There is no doubt the trial judge erred during his reasons where he used the words “strong odour of alcohol” and I fully appreciate the importance of such language in the analysis of reasonable grounds for the arrest of an individual for impaired operation, particularly if those words are viewed in isolation or where that is the only evidence supporting the arrest. In this case, there was the additional evidence of the erratic driving culminating in two serious collisions, the damaged, offending vehicle leaving the scene, a vehicle strongly connected to the collisions found in proximity, the appellant admitting he was the driver, observed in the vehicle and unsteady. Correcting Justice Zuraw’s error to reflect the evidence that there was “the odour of alcoholic beverage” does not place the analysis “on unsteady ground” when reviewing the entirety of his equation.

[25] There is no doubt that evidence of a strong odour of alcohol would enhance the grounds for arrest. However, the corrected evidence amply supports Justice Zuraw’s ruling that Officer Norio had reasonable and probable grounds for the arrest and that these reasons were objectively justifiable. Simply stated, the error did not undermine the trial judge’s overall analysis.

Identification

[26] The appellant submits that the evidence for the identification of the appellant as the driver of the vehicle involved in the offences is purely circumstantial, since there is no one to identify him as the driver. Flowing from this, the appellant argues that he could only be found guilty if a finding that he was the driver was the “only rational inference” from the evidence.

[27] Justice Zuraw, after reviewing the supporting evidence, did find the appellant was the driver stating that “the logical inference which can and should be drawn is that the appellant is the operator of the vehicle”. The appellant argues this was an error on the part of the trial judge in that he failed to indicate this was the “only” inference and that he otherwise failed to apply the reasonable doubt standard.

[28] Both counsel agree and it is well settled that trial judges are presumed to know the law (see: [R. v. Burns (1994), 899 C.C.C. (3d) (S.C.C.) at paras. 199-200](R. v. Burns (1994), 899 C.C.C. (3d) (S.C.C.)); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 45). This would, of course, apply to the fundamental requirement that the Crown has the burden to prove each offence beyond a reasonable doubt.

[29] The current state of the law is clear that there is no necessary incantation required to be used by a trial judge when making determinations, including identity, based on circumstantial evidence. As Justice Campbell made clear in R. v. Linskyi, 2012 ONSC 7215 at para. 31:

There was no need for the trial judge to comment expressly on the circumstantial nature of the evidence in this case. As Charron J. stated in R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), in delivering the judgment of the majority of the court, at para. 33, we have “long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one of identification.” Moreover, concluding that “the only rational inference that can be drawn from the circumstantial evidence is that the appellant is guilty” is no more than an alternative formulation of the Crown’s normal burden of “proof beyond a reasonable doubt.” The law does not insist on any particular formulaic articulation of this fundamental and well-known burden of proof. See: R. v. Cooper, 1977 SCC 11, [1978] 1 S.C.R. 860; R. v. Fleet (1997), 1997 ONCA 867, 120 C.C.C. (3d) 457 (Ont. C.A.) at para. 20; R. v. Tombran (2000), 2000 ONCA 2688, 142 C.C.C. (3d) 380 (Ont. C.A.) at para. 19-30 ... Indeed, articulating the Crown’s legal burden of proof beyond a reasonable doubt in the context of a case based upon circumstantial evidence is precisely the kind of “boilerplate” that is not legally required in a busy trial judge’s Reasons for Judgment.

[30] Flowing from the above, the trial judge is required to provide reasons sufficient to demonstrate that he/she was satisfied of the offence having been proved beyond a reasonable doubt. Justice Zuraw’s language is clear in that regard.

[31] Respecting the identity issue, Justice Zuraw, in his Reasons for Judgment, reviewed the relevant evidence and then stated, “the logical inference that can and should be drawn” is that the appellant was the operator of the offending vehicle.

[32] I note that trial judge prefaced his ruling with “the” logical inference. Justice Zuraw did not say “a”, “an”, “one” or use some similar word or phrase suggesting the inference he drew was one of several available to him on the evidence. He states precisely “the” inference he says the evidence directed him to.

[33] I can find no error in the inference the trial judge made or his reasons in support of that inference. There was ample evidence to conclude that the appellant was the driver, including his own admission that he was the operator when asked by Constable Norio (see paragraph 21 above) and his concession that the Lincoln was the vehicle involved in the collisions.

[34] There is no suggestion in Justice Zuraw’s language of any alternate, available inference that would raise a reasonable doubt. There is no suggestion that Justice Zuraw was left with any reasonable doubt respecting the identity of the driver or that he failed to apply the burden of proof beyond a reasonable doubt.

Conclusion

[35] The appeal is dismissed.

[36] The appellant shall surrender into custody at Maplehurst Correctional Institute by Friday, March 22, 2019 at 5:00 p.m. and serve his remaining sentence.

D. FITZPATRICK J. Released: March 21, 2019