Court File and Parties
COURT FILE NO.: SCA(P) 541/17 DATE: 20190325
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN G. Hendry, for the Respondent Respondent
- and -
RICHARD ADJEI-DAPAAH R. Achampong, for the Appellant Appellant
HEARD: March 8, 2019
REASONS FOR JUDGMENT
[On appeal from the judgment of Justice R. P. Main, dated April 3, 2017, with reasons given on July 17, 2017 at the Ontario Court of Justice in Brampton, Ontario]
Fragomeni J.
STATEMENT OF THE CASE
[1] On April 3, 2017, Justice Main convicted the appellant of impaired driving.
[2] The appellant was found not guilty of refusing to provide a breath sample.
[3] The trial of this matter took place over the following days: July 13, 2016, July 14, 2016, October 17, 2016, October 21, 2016, January 18, 2017, April 3, 2017 and July 17, 2017.
[4] The appellant appeals his conviction and advances the following grounds of appeal:
(i) Whether the learned judge erred in law in substantively disallowing the appellant from seeking Charter relief, while substantively making a ruling on the merits of a Charter application, resulting in an unfair trial;
(ii) Whether the learned judge erred in law by denying the appellant’s Charter application;
(iii) Whether the learned judge misapprehended the evidence at trial by referring to structural damage on the appellant’s car as resulting in an accident that was not available to him on the evidence;
(iv) On the totality of the trial record, whether the appellant received a fair trial.
OVERVIEW OF THE FACTS
[5] The following overview of the facts will suffice for the purposes of this appeal to provide a context for the discussion that follows. Additional reference to the evidentiary trial record will be provided where required when analyzing the grounds of appeal raised by the appellant. The relevant facts are as follows:
− the appellant is 34 years of age and has been employed as a primary school teacher for the past ten years.
− on November 2, 2014, he woke up at 6:00 a.m. to make breakfast for his two children.
− the appellant had not slept or taken a nap the entire day.
− thirteen hours after waking up, the appellant decided to attend a pre-scheduled going away get-together for a high school friend. He remained at the get together until 1:00 a.m.
− while at the get together, according to the testimony of the appellant, the appellant consumed only one Heineken beer. He testified that he only consumed the one beer as he had an earlier conviction for drinking and driving in 2010.
− the appellant testified that on his way home to Brampton, travelling at a speed of 100 km per hour, he felt that there was something wrong with the right tire as it was vibrating. He panicked and pulled over to the shoulder at highway 410.
− the appellant testified that he felt groggy and tired as he had been awake for close to twenty hours. He attempted to use his cell phone to call CAA but his cell phone was dead.
− the appellant stated further that he waited until he could see a tow truck driver and to get the attention of a tow truck driver he chose to stand outside of his vehicle.
− a tow truck driver by the name of Carlton Mitchell saw the vehicle of the appellant and stopped to render assistance.
− Carlton Mitchell testified that when he first saw the appellant, the appellant was inside of the car.
− Carlton Mitchell made observations of the appellant and of the appellant’s vehicle. As a result of these observations he contacted the police.
− P.C. Kokot arrived on scene and saw the appellant standing outside of the vehicle. After speaking to Carlton Mitchell and after making his own observations of the appellant and the appellant’s vehicle, he arrested the appellant and made a demand for the appellant to provide a breath sample.
Issues 1 and 2 can be combined as the Charter Application
[6] The appellant submits that Mr. Mitchell arrived at the location of his vehicle with a suspicion that he had been the driver of a car that had been reported to have been involved in a guardrail collision on Highway 427. This coloured the context in which he engaged the appellant and subsequently informed his call to the police.
[7] The appellant also submits that P.C. Kokot attended at the scene with a view to arresting him as he also suspected that the vehicle had been the same as the one in the highway 427 guardrail occurrence.
[8] The appellant argues, therefore, that the undisclosed perception of P.C. Kokot that the appellant had been the same driver coloured his dealings with the appellant.
[9] Within this backdrop, the appellant advances the following argument:
His Honour, Main J. refused to rule on whether the accused can proceed with his Charter application, even though the appellant queried the court on multiple occasions. The learned judge refused to rule on whether the application can be heard, and effectively dismissed the application, but quixotically allowed it in part on one ground –section 10(a).
The learned trial judge’s ruling to dismiss, yet allow a Charter application compromised the appellant’s ability to make full answer and defence.
The fairness of the appellant’s trial was compromised by the fact of the learned trial judge delaying a ruling on his Charter application when it was brought on the first day of trial.
[10] The respondent Crown submits that the appellant failed to properly put forward his Charter application and, once he was allowed to do so, the learned trial judge dismissed it. The learned trial judge did not err in doing so. The Crown points to the following factors to support his position:
- The case was up for trial for the second time.
- The original trial date was adjourned to allow the defence to bring a Charter application alleging breaches of ss. 8, 9, 10(b) and 12.
- No written application was brought prior to, or during, the trial.
- On July 13, 2016, counsel for the appellant indicated he would prepare a “two-paper summary” of the Charter issues for the next date. There is no indication in the record of any such summary ever being produced to the trial judge.
- The trial judge allowed counsel for the Appellant to cross-examine the arresting officer on any potential Charter breach.
- Following the cross-examination, counsel for the Appellant made submissions on the appropriateness of not filing an application in advance and particularized the alleged Charter breaches.
[11] I agree with the position of the Crown on this issue. It is informative to make reference to the trial transcript to demonstrate that despite the appellant not preparing a formal written notice of a Charter application, the trial judge permitted the appellant to cross-examine P.C. Kokot on the issues and then permitted the appellant an opportunity to make the appropriate submissions.
THE COURT: For a case that’s this old, has been adjourned once, and has been pre-tried, and we’re now at four o’clock on the first day of trial, which has to end within 24 hours. And we’ve listened to your cross-examination, that’s gone on for several hours already. And you’re trying to raise issues that may found the basis of a belated Charter application, but this case has to come to a point. It can’t keep getting wider and wider, and further and further down the delay road.
MR. ACHAMPONG: Yes.
THE COURT: I’m going to call the witness back, you can cross-examine fully on the substance, on the infringement, on anything you find of relevance subject to objections that I may have to rule on, but we have to put some controls on this trial. You have a problem with that?
MR. ACHAMPONG: I think Your Honour the authorities are clear. I’m entitled to proceed with my application. If my friend is suggesting that he is not prepared to argue a Charter application, then he can say that.
THE COURT: At this point you’re the one not prepared to argue the Charter application, because you haven’t filed one, notwithstanding you haven’t given indication to the court that you were hoping to do so. So, you’re here, you’re unprepared, you’re, you’re trying to do the wherewithal for a discovery to find the evidence that support your, your suggestion that rights were infringed.
[12] The learned trial judge clearly indicates to defence counsel that he can cross-examine “fully on the substance, on the infringement…” The appellant’s position that he was not given an opportunity to fully explore, in cross-examination, the circumstances surrounding the investigation and subsequent arrest is not accurate.
[13] The appellant then argues that he was not allowed to make fulsome submissions on the Charter issues. A review of the October 21, 2016 transcript again demonstrates that this assertion has no merit.
THE COURT: So effectively now we’re at the point where we were being called on as to whether or not Mr. Adjei-Dapaah through counsel should be entitled to bring forward an application under the Charter alleging a violation, or infringement of his rights.
MR. ACHAMPONG: That’s correct, Your Honour.
THE COURT: And I’ll make ruling after being advised by counsel. So, yes sir, go ahead.
MR. ACHAMPONG: Sir, sir, my apologies, Your Honour.
THE COURT: Yeah go ahead.
MR. ACHAMPONG: I, I give you R. v. Blaum (ph).
THE COURT: Yes
MR. ACHAMPONG: … and Her Majesty the Queen and St. Vincent Tash (ph). Two cases, one being an Ontario Court of Appeal case, one being a similarly conviction appeal court.
THE COURT: Yes, go ahead.
MR. ACHAMPONG: Your Honour, since it’s really not my objection I wonder, because I moved on the basis of this, of Blaum (ph) and Loveman (ph) in, on the previous occasion, and I remember when we went, you were at some great pains to say, “Why couldn’t you bring this ahead of time?” and my friend indicated I believe …
THE COURT: Well, because that’s what the rules say.
[14] Commencing at page 47 and continuing to page 61, the learned trial judge hears submissions from the appellant on the Charter issues raised.
[15] The trial judge ultimately ruled that he would not allow the appellant to proceed with his Charter application given that the evidence of Cst. Kokot did not disclose a viable Charter argument under ss. 8, 9, and 10(b). The trial judge allowed the s. 10(a) allegation to proceed and for the Crown to re-examine the officer on this issue to determine if it was viable.
[16] The learned trial judge gave his oral ruling commencing at page 61 and ending at page 67. I will not reproduce all of those pages in these reasons but I do wish to set out portions of the judge’s comments:
THE COURT: We’re at the point in the trial where the court is called to rule as to whether or not the trial will continue on its merits with vis-a-vis the elements of these two offences, or whether it also should include an application to allege and adjudicate the allegation of violations of the defendants’ rights.
This trial does fit within a history of a matter that started almost two years ago, on the 2nd November 2014, in the system there is adjournments, disclosure and the like, pre-trials, and then the matter set for trial a year ago, 21 October 2015, literally a year ago to the day.
There the court was met with an application for an adjournment, and I read the Justice’s endorsement, clearly, she was alive to the fact that if indeed there was some meritorious Charter issues they should be properly put before the court, and of concern for Mr. Adjei-Dapaah’s rights she granted the adjournment, urged her clerk to go and expedite a trial date that ended up before me in Brampton.
Back in July the trial started, again clear that no application was made, (no material notice or affidavit, factum or otherwise,) was before the court, and we then had to proceed on the basis of really wondering what these issues were. That the allegation was being made, or whether it would come out of the evidence.
I gave significant latitude to defence to explore the merits if there was any evidentiary foundation for an allegation of breach. That happened with a lengthy and thorough cross-examination with the tow truck driver who was the first on the scene and saw and dealt with Mr. Adjei-Dapaah, and then also Officer Kokot, the investigating officer. His evidence started that day, was interrupted and then continued and completed today. Well, not completed in the sense that we’re still waiting to see if the Crown feels the need, or desire to re-examine him.
Then we turn to the second issue, namely procedural fairness. Here guided by a Court of Appeal in Blaum (ph) and by the Superior Court in Tash (ph), yes, we know that rights are always there, the Charter always speaks, and having these artificial rules of procedure, really they’re there not for the sake of court or court administration, they’re there to protect the rights of the accused, but in a way that’s fair and balanced between the accused and the Crown.
Here, never articulating his, his, his evidence in an affidavit, no notice given to the Crown on day one of the trial or the first trial or this trial, and clearly in violation of the rules of procedure. Thirty isn’t the rule anymore, it’s one, two, and three where the paramount principle is that the cases proceed with, justly and efficiently. And duty of Counsel to comply with those rules.
There’s been no compliance. The Crown’s really wondering, I was even wondering which is why I was so blunt in trying to focus Mr. Achampong’s attention to what, what the allegations were that represented his complaints as to what violations occurred. So, in terms of the merits and the procedural unfairness issues I am ruling against the defendant, and I’m indicating I’m not excusing the non-compliance, and if there is a Charter issue, it is being dismissed. I am not- that’s with the prejudice.
I am leaving it open for the further exploration as to whether section 10(b) was complied with, that Crowns’ conceded that he wants to ask a few more questions of Officer Kokot, and certainly that will leave open for Mr. Adjei-Dapaah at some point to respond. He may feel that, the way he was treated on arrest does represent something that violates his rights.
[17] The learned trial judge allowed the appellant to cross-examine the witnesses on any infringement. The appellant was then permitted to make submissions with no restrictions. The trial judge dismissed the Charter application. It was not unfair for him to do so. In R. v. Cody, 2017 SCC 31, at para. 38, the court stated:
In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.)). And, even where an application is permitted to proceed, a trial judge’s screening function subsists: trial judges should not hesitate to summarily dismiss “applications and requests the moment it becomes apparent they are frivolous” (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.
[18] In this case, the trial judge went even further and actually heard submissions. On the evidentiary record before him, it was clearly open for him to find and conclude that the appellant had not established that there were any Charter breaches. In doing so, the learned trial judge did not commit any error.
[19] This ground of appeal fails.
Issue #2: Misapprehension of Evidence
[20] The appellant submits that, in his reasons for judgment, the learned trial judge set out his findings as they related to the structural damage testimony. From that, he inferred that the appellant’s vehicle had been involved in a collision. In doing so, according to the appellant, the learned trial judge committed a palpable and overriding error.
[21] There was no admissible evidence before the court that the appellant’s vehicle had been involved in a collision, and as such, this ought not have resulted in the finding of guilt against him. Per the appellant, the use of the highway 427 narrative against him evinces a misapprehension of evidence, which can only be cured by setting aside the conviction, as there was no guardrail at highway 410, the only material location to the particularized allegation before the court. The misuse of the radio calls of an unidentifiable car hitting the guardrail, and its attribution to the appellant has no foundation in the evidentiary record and amounts to a misapprehension of evidence.
[22] The Crown argues that the evidence of Carlton Mitchell and PC Kokot allowed the learned trial judge to make the findings he did. There was no misapprehension of the evidence in doing so.
[23] In his reasons for judgment, the learned trial judge sets out the following as it relates to the structural damage:
So, on the first count, the impaired driving, we look at Mr. Mitchell’s evidence in more detail. So he arrives on the scene, finds the vehicle’s four way flashers on. He comes to a stop thinking he could offer assistance. Mr. Adjei-Dapaah, he describes him as staggering out of his vehicle, and staggers into the live lane of traffic. He’s concerned, he actually had to put his hand on Mr. Adjei-Dapaah and pull him out of off the road for his safety.
He looked at the vehicle, saw some obvious structural damage in the front right corner. He mentioned that, and Mr. Adjei-Dapaah was pointing instead to some rust and scratches in the context of his damaged car, and otherwise seemed oblivious to the fact that there was significant structural damage in the front corner.
Mr. Adjei-Dapaah asked for his help to get him home, but at that point, Mr. Mitchell realized that the circumstance was such that he had an obligation to phone the police. But as he was doing that, he describes Mr. Adjei-Dapaah putting his vehicle in motion, trying to drive off up the ramp.
[24] A review of Mr. Mitchell’s evidence and P.C. Kokot’s evidence on this issue will provide the necessary context for the analysis of this issue.
Carlton Mitchell:
July 14, 2016 transcript of proceedings – Page 8, line 2 to page 9, line 15
A. I think you’re getting yourself confused.
Q. I, I, I believe me, I confuse myself on many but…
A. Yeah, I think you’re getting yourself confused.
Q. …your evidence is, when you took the flashlight he had now walked around to the driver’s side car, correct?
A. Correct.
Q. Okay. Now he’s on the driver’s side, you take your flashlight out, and you tell us that this is the time you place the second call to the OPP, correct?
A. No.
Q. Okay. Well let’s, let’s backtrack then. You take your, when you took your flashlight out you did not call the OPP at all?
A. Yes.
Q. You called the OPP the second time, or the first time?
A. First time.
Q. All right. Now the first time you indicated already in your evidence sir that that was when you were having a conversation with him when he was already pointing out the, the damages that, the rust spots that you said, according to you, had nothing to do with what you were thinking was an accident, is that correct?
A. Correct.
Q. Okay. So, the first time, that’s the first time. At that point when you first got out of your car, you don’t have your flashlight on you, correct?
A. No.
Q. Okay. So, you grab your – you, you, you’re out there, he’s pointing stuff to you, it’s dark outside, correct?
A. Pardon me?
Q. Is it dark outside?
A. It is.
Q. Okay I – is, are there like, lights, is it illuminated?
A. It is.
Q. And then, but….
A. Not, not, not enough in that area, but it is.
Q. But you needed your flashlight to actually really see what he was pointing to, correct?
A. No, I wanted to see the damage that was done to the car.
Page 67, lines 18 to 30
Q. …that he was asking you questions and no sorry. You were – he was asking you questions and you were giving him answers, is that correct?
A. No. First, I asked him, “What happened?” He said he didn’t know. I asked him about the damage to his vehicle, and then he decided to show me damage that had nothing to do with the damage that occurred to his car.
Q. Okay. And that was your opinion, correct?
A. Pardon me?
Q. Your opinion, that what he showed you had nothing to do with what happened to his car?
A. Well rough spots and scratches had nothing to do with the damages to his car.
Page 73, lines 12 to 15
Q. Okay. So, OPP, what did you tell the OPP when you were standing in front of him while calling them?
A. I came across a vehicle, it looks like it’s been involved in an accident.
July 14, 2016 transcript of proceedings, page 3, lines 23 to 28
Q. And then I believe you, your notes indicate that you grab the flashlight to look at what he was talking about on the vehicle, and noticed damages to passenger side fender, passenger side wheel, bumper, and cracked hubcap, bent rim, and perched tire, do you remember that, correct?
A. Correct.
P.C. KOKOT:
Page 10 Line 17 to page 11 Line 4:
MR. LEVAN: Yeah.
THE COURT: And the basis all kind of things…
MR.LEVAN: Exactly.
THE COURT: …that take under l….
MR.LEVAN: That’s what I’m tendering it for.
THE COURT: Got it.
MR.LEVAN: Okay, good. I just wanted to be sure.
THE COURT: No, that’s fine.
MR.LEVAN: All right.
MR.LEVAN: Q. So, Constable Kokot, tell us about that night and what you were doing, and where you went, and why you went there.
A. Okay. So, on this night, I was working in full uniform capacity, I was operating a police cruiser. At 2:49 a.m. I received a call from service from Ontario Provincial Police Communication Centre dispatcher. The nature of the call was a traffic complaint. The traffic complaint was located on the highway 410 northbound on ramp, from highway 401 westbound, and this is in the City of Mississauga. Now on this date I was working out of the Ontario Provincial Police Toronto Detachment. The reason that the Provincial Communication Centre dispatched this to the Ontario Provincial Police Toronto Detachment as well, was due to the fact there was a similar traffic complaint of a motor vehicle that matched the description of the motor vehicle that was located on the highway 401 northbound ramp. There was a complaint that was dispatched at 2:33 a.m. of a motor vehicle travelling northbound, on highway 427 that had struck the concrete guard rail.
Page 12 Line 27 to page 13 Line 11
Q. Okay. And so, you say that you parked your cruiser, what did you do then?
A. I observed that Nissan Sentra with a licence plate number. I was able to observe that there was fresh damage to the motor vehicle. The location of this damage was the passenger side front, and it encompassed also the tire, the front passenger side tire. I then went and I spoke with the tow truck driver, who was seated in his tow truck. At this point, I asked a question of the tow truck driver in reference to the male that was standing outside of his tow truck.
Q. All right. Appreciating that this conversation we’ve already decided goes to grounds Your Honour, officer, what did you ask him and what was his reply?
A. The question was, “Was he behind the wheel when you got here?” And I received an answer to that.
Q. Which was?
A. “Yes, he got out.”
Page 18 Line 27 to Page 19 Line 26
MR.LEVAN: Q. So, constable you earlier said that when you arrived you noted just some damage to the Nissan?
A. That’s correct.
Q. Can you tell us a little bit about that, and what you observed?
A. So, the damage was to the front passenger fender area, and it encompassed part of the front bumper. But specifically, it was around the wheel well, and the wheel itself.
Q. Okay.
A. That had damaged.
Q. All right. Can you tell us a little bit about it, was it, was the when you say that the wheel itself had damaged, are we talking about the hub cap, the rim, the tire?
A. There was a, there was a rim on there. The rim was damaged. It appeared that it was bent.
Q. Okay.
A. Again, as far as an opinion goes, I believe possibly the damage was extensive enough for, for, for the motor vehicle to have to pull over due to that damage that was on the vehicle.
Q. All right.
A. It seemed to possibly effected the way a motor vehicle would travel.
Q. All right. In your mind though if you would say taken the keys, started it up, would, could you have done with it?
A. Well, I did do those things.
Q. But if you had and then attempted to drive it, what would’ve been the result?
A. I, I believe in my opinion it would’ve been operable, but it would’ve been operable in an unsafe manner.
Page 59 Line 4 to Page 61 Line 7
Q. And when you say damaged, what exactly did you observe? Please provide specifics.
A. Okay. So that it was inflated. Okay, so it wasn’t that it was deflated but the ….
Q. I’m sorry, I don’t want to lose your answer, it was inflated or deflated?
A. Inflated. So …
Q. Okay.
A. … that there was some damage in and around the rim area, the center of, of the, of the tire, and there was also some damage and dents around the front passenger fender that essentially houses the front passenger wheel.
Q. Okay. Now within a hub that’s some protruding quality, was there anything sticking out of the hub?
A. Sticking out? No, not that I made any …
Q. Was it …
A. … specific observations.
Q. … was it a regular hub that just covered the tire? I, I don’t know, I don’t know how to use these car descriptions. The hub?
A. There was a, there was a metallic rim that looked to be damaged.
Q. All right. When you say damaged, please describe the damage?
A. Fresh scratches, indentations.
Q. Did you inquire as to whether or not it was fresh?
A. Just from my observations I’d be able to tell if it was scratched.
Q. So, what did you exactly observe? You observed scratches, correct?
A. Correct.
Q. Okay, and what kind of scratches did you observe?
A. Something that would be consistent with striking a concrete guard rail for example.
Q. And how would those look like?
A. They are essentially grey lines, various sizes, and width. It just depends on how do more vehicles stroke, stoke other object with it.
Q. All right. Now you indicated it looked consistent with concrete, a car that would’ve struck a concrete guard rail, did you get close to the tire to inspect and see whether or not there was concrete near the car?
A. I didn’t see any concrete.
Q. Okay. You saw scratches?
A. Yes.
Q. Okay. Now how did those scratches look like? Did they, were they parallel, were they horizontal, were they vertical?
A. A direction that they flowed from I couldn’t tell you if they were horizontal or vertical.
Q. Now you indicated the hub scratches appeared to be fresh…
A. Yes.
Q. … by that do you mean that what was it painted, was there paint on these hubs?
A. No, in the sense where sometimes when a motor vehicle has scratches or damage to it, and it continues to travel for any period of time, days, weeks, months, all the time that they happen to be just covered with, with dirt and does not look fresh. This looked to be essentially what I would consider to be new damage to the motor vehicle.
Q. Why because it didn’t have, it wasn’t covered with dirt?
A. Correct.
Q. It didn’t look like – okay.
A. It looked fresh.
[25] The Crown’s theory did not involve the appellant’s vehicle being in an accident. At no time in his reasons does the learned trial judge refer to the police radio call of a car striking the guardrail. Contrary to the appellant’s submissions on this point, the learned trial judge does not place an overreliance on the structural damage testimony.
[26] It was open to the trial judge to infer that a collision had occurred and he did not commit a palpable and overriding error in doing so. The testimony of Mr. Mitchell and P.C. Kokot was sufficiently probative on that issue and provided ample evidence that a collision had occurred at some point in time. The learned trial judge accepted their evidence as he was entitled to do so.
[27] This ground of appeal fails.
Issue #3: Trial Judge’s Interventions
[28] In his factum, the appellant points to three instances where the trial judge unduly inserted himself in counsel’s cross-examination:
Transcript of Proceedings, July 13th, 2016 at pp46-47
Transcript of Proceedings, July 14th, 2016 at p. 43
Transcript of Proceedings, October 21, 2016 at p. 37
[29] The Crown submits that a review of these transcripts demonstrates that none of the alleged interventions create the appearance of an unfair trial to a reasonable person present throughout the trial.
Page 46 Line 5 to Page 48 Line 4
Q. And what if anything did you do to invest these reasonable possibilities that you’re indicating?
THE COURT: Well, has he not told us that? He got to the scene, he parked in front of the vehicle, he looked at the vehicles, both with the tow driver?
MR. ACHAMPONG: Your Honour, that was his testimony in –chief. I am asking him this is the first time we have heard any other theories suggesting that he was investigation the possibility of….
THE COURT: No, but he was open to the possibility.
MR. ACHAMPONG: Your Honour, I believe the evidence was that he had in his mind, his state of mind, was that he was investigating impairment. He was connecting the dots with respect to …
THE COURT: Sure.
MR. ACHAMPONG: … impairment.
THE COURT: Sure, he’s a police officer.
MR. ACHAMPONG: Yes, Your Honour.
THE COURT: That’s what we pay them to do, to go into a scene, and try to assess it with his open mind as possible.
MR. ACHAMPONG: And Your Honour I’m, and I am permitted, respectfully submitted Your Honour, I am permitted to explore what he …
THE COURT: Of course you are.
MR. ACHAMPONG: … indicates to be reasonable possibilities, and what he did in further…
THE COURT: But you asked him what he did, and he’s told us what he did to investigate.
MR. ACHAMPONG: Your Honour, I don’t think ….
THE COURT: Driving there is a good first step, parking there is a good second step. Assessing the situation, the vehicles, the damage, talking to the tow driver, that we’ve already heard.
MR. ACHAMPONG: Well one Your Honour, if ….
THE COURT: So carry on.
MR. ACHAMPONG: Respectfully Your Honour ….
THE COURT: Carry on.
MR. ACHAMPONG: Respectfully Your Honour, he has evidence in-chief. The witness has testified Your Honour that he was investigating what were reasonable possibilities, and for those reasonable possibilities, he indicated that impairment could’ve been informed by a number of things. He said medicine ….
THE COURT: You’re, you’re, you’re making submissions, sir. Why don’t you focus your questions, I’ll listen to the answers.
MR. ACHAMPONG: But you’re not – Your Honour, you stopped me when I was trying to get to what he meant by reasonable possibilities.
THE COURT: Well, then go for it. But your question was what did he do, and to further his investigation.
MR. ACHAMPONG: In respect of ….
THE COURT: Fairly open-ended question.
MR. ACHAMPONG: In respect of what he considered to be reasonable possibilities, what did he do to investigate those reasonable possibilities? I’m entitled to ask that question, Your Honour.
THE COURT: That’s why I gave you the authority to do it, go for it.
MR. ACHAMPONG: Thank you, Your Honour.
THE COURT: Continue.
[30] The appellant fails on this complaint. The exchange with counsel does not point to trial unfairness.
July 14, 2016, page 42 – 43:
A. No, I don’t have a conversation on, on the live side of a traffic. It’s either I do it on the passenger’s side or in my truck.
Q. So, you just show up and you just stay silent and just observe the driver, is that what protocol is? Is that what you do?
A. No.
Q. Okay. So….
THE COURT: I think he was responding to your suggestion that he was asking, having a conversation.
MR. ACHAMPONG: Your Honour respectfully….
THE COURT; He’s trying to be responsive.
MR. ACHAMPONG: Okay. Your Honour I’m hearing, I’m hearing editorials from the bench, which is somewhat encumbering my ability to effectively cross-examine Mr. Mitchell. He is at….
THE COURT: You used the word conversation and he’s trying to suggest that he doesn’t have conversations on the live side…
MR. ACHAMPONG: And I was asking him a follow –up….
THE COURT: …of a car.
MR. ACHAMPONG: Your Honour and I was asking a follow….
THE COURT: Was that not responsive to your question?
MR. ACHAMPONG: Court’s indulgence, Your Honour. So, Your Honour you were making some comments?
THE COURT: No, I wasn’t. I was trying to help the process move along, and it’s your cross-examination and you’ll continue it if you wish.
[31] In R. v. Snow the Court set out the following at paras. 22 – 25:
[22] Many of the interventions complained of by the appellant were entirely innocuous and appropriate. The trial judge frequently interjected during examination-in-chief and cross- examination of witnesses to clarify ambiguous questions and ensure that he and the jury understood the evidence. Many of his interventions were to ascertain the relevance of evidence and to ensure that inadmissible evidence was not adduced.
[23] It is apparent from the transcript that the trial judge at times became very frustrated with what he regarded as the truculent and obstreperous conduct of defence counsel, an assessment that certainly could not be described as ill- founded. Some of the trial judge's comments could only be described as insulting and demeaning. While one can appreciate the trial judge's annoyance with defence counsel's conduct, it would have been preferable had he not risen to the bait. However annoying or irritating counsel may become, the trial judge at all times should control proceedings with judicious demeanour.
[24] On the other hand, a trial judge is certainly entitled to control the proceedings and to intervene when counsel fail to follow the rules or abide by rulings. A trial judge is not a mere observer who must sit by passively allowing counsel to conduct the proceedings in any manner they choose. It is well recognized that a trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides: see R. v. Felderhof (2003), 68 O.R. (3d) 481, 180 C.C.C. (3d) 498 (C.A.) at paras. 36-47, 53; R. v. Valley, [1986] O.J. No. 77, 26 C.C.C. (3d) 207 (C.A.) at pp. 230-32 C.C.C.; R. v. G. (A.), [1998] O.J. No. 4031, 130 C.C.C. (3d) 30 (C.A.) at paras. 41-54. We agree with the submission of the Crown that when viewed in the context of the proceedings as a whole, the trial judge did not cross "the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy the appearance of f airness": see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, 180 C.C.C. (3d) 476, at paras. 44-52.
[25] We do not agree that the trial judge's numerous interventions during defence counsel's cross-examination of defence witnesses curtailed the appellant's right to a fair trial or revealed a reasonable apprehension of bias. The trial judge was entitled to curtail questions by defence counsel that were irrelevant, prolix and repetitive. The trial judge was also entitled to intervene to [page51] cut off editorializing and argumentative questions and to ensure that there was a good faith basis for putting certain questions. Defence counsel frequently refused to abide by rulings and this understandably provoked further interventions from the trial judge.
[32] I am satisfied that the learned trial judge did not cross the line. He was entitled to manage the trial as he did.
[33] The appellant again fails on this complaint.
[34] October 21/16 transcript, page 37.
Q. Okay. Now this Alcohol Influence Report being filled out at the – was it filled out before he was asked to provide his first sample or was it during?
MR. LEVAN: Your Honour, I don’t think this witness can fairly answer comment when another officer filled out a form, unless he was present which he’s indicated he wasn’t…
THE COURT: Yeah.
MR. LEVAN: … after having had a brief conversion with him.
MR. ACHAMPONG: Your Honour …
THE COURT: Considering it’s not his document Mr. Achampong.
MR. ACHAMPONG: That’s correct, Your Honour. But I think the witness by his own testimony has indicated that he provided information to Officer Turpin when he was filling out the report, he didn’t say that.
MR. ACHAMPONG: I, I’m sorry…
THE COURT: He said that he gave him information that he would need for the report, but he didn’t stay in the breath room.
[35] The appellant fails on this complaint. I agree with the Crown that this exchange does not even suggest that this was a judicial intervention.
[36] This ground of appeal fails.
[37] This trial took place over numerous days. The appellant has only set out three instances during this entire trial proceeding that he alleges resulted in trial unfairness. In accordance with the comments made in Snow, the appellant falls short in establishing that the learned trial judge’s conduct resulted in an unfair trial or revealed an apprehension of bias.
[38] In McGregor v. Pitawanakwat, 2017 ONCA 77, Laskin, JA stated the following at paras. 19-21 and 27:
[19] The threshold for showing bias is appropriately high. We presume judges will be impartial. We presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The standard is objective. The test the party alleging bias must meet is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial or application judge would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at p. 394.
[20] This test recognizes that appearances count. Justice must not only be done, it must appear to be done. Thus, the test captures both actual bias, which is rarely alleged, and the appearance of bias, which is more commonly alleged and which is alleged on this appeal.
[21] In assessing a claim alleging an appearance of bias, a reviewing court has to examine the judge’s conduct of the entire trial or hearing. Instances of alleged improper conduct must be considered cumulatively, but the odd inappropriate comment during the course of a long hearing will be unlikely to establish a reasonable apprehension of bias: S. (R.D.), at para. 134.
[27] Pitawanakwat cited several of the application judge’s comments, which she maintains were sarcastic and denigrated her position. On appeal, we are reviewing the transcripts of the proceedings, so we cannot assess the tone of the application judge’s comments. But on reading them, none of the comments Pitawanakwat relies on reflects sarcasm or denigration of her position. One or two may show the application judge’s impatience, but nothing more. Cumulatively, they do not give rise to a reasonable apprehension of bias. Only a few require some explanation.
[39] In Cannon v. Cemcor Apartments Inc., 2017 ONCA 378, the Court stated the following at paras. 15 to 18:
[15] It must be said that the efficiency and, perhaps more importantly, the tone of the trial suffered, to some degree, as a result of the trial judge’s many interventions and the tensions that developed between counsel and the trial judge as a result of those interventions. We also understand the appellant’s concern about the appearance of fairness. However, the trial judge’s interventions do not rise to the high level required to displace the presumption of judicial impartiality. Having regard to that presumption, a reasonable person, properly informed, would not apprehend bias as a result of the trial judge’s interventions.
[16] The interventions did not prevent counsel from fully developing the defence position. Nor did the interventions necessarily favour the defence over the plaintiff. We do not agree with counsel for the appellant’s submission that the trial judge’s interventions “coached” the defence witnesses. The trial judge’s repeated admonitions to witnesses to stay within the limits of their own knowledge in answering questions did not appear to necessarily advantage one side or the other. Depending on the question, the limits on the response imposed by the trial judge had the potential to assist either side.
[17] We also do not agree that the transcript permits this court to conclude that the trial judge took over carriage of the defence. As counsel for the respondent correctly points out, it is impossible to say from the transcript alone whether some of the trial judge’s interventions were at his own initiative, or in response to defence counsel standing to make an objection.
[18] The trial would have proceeded more smoothly had the trial judge intervened less and allowed defence counsel to conduct his cross-examination as he saw fit. Indeed, the need for many of the interventions would probably have disappeared had the trial judge simply allowed defence counsel a little more leeway in developing his line of questions. However, while the judge can be properly criticized for many of his interventions, we do not accept that those interventions rendered the trial unfair, or created a reasonable apprehension of bias.
[40] In summary, I do not accept that the conduct of the learned trial judge rendered the trial unfair or created a reasonable apprehension of bias.
Issue #4: Use of the Appellant’s Statements to Cst. Turpin
[41] The appellant submits that the trial judge erred in using the alcohol influence report in his analysis of the Appellant’s credibility. The Crown submits that no such error occurred.
[42] The Crown points out that the alcohol influence report is just the title of Cst. Turpin’s notes. There was no need for those notes to be an exhibit at the trial.
[43] Further, it was open to the trial judge to use the statements of the accused in his credibility analysis as those statements were introduced by the Appellant.
[44] At trial, the Crown played the breath room video to prove the refuse breath sample charge. As the Crown was playing the video, the Crown specifically referenced the fact that they were only leading the video for the elements of the offence and the other statements were not being led for the truth of their contents. The trial judge noted that he would disabuse his mind of any utterances that did not go to the elements of the offence.
[45] The appellant’s cross-examination of Cst. Turpin, involved a detailed examination of the entire proceedings in the breath room. In doing so, the appellant put his statements before the trial judge. In particular, the appellant confirmed his response to the number of drinks he had with the officer.
[46] The trial judge did not err in relying on the appellant’s statements to the breath technician in making his credibility analysis. As the appellant chose to lead those statements through cross-examination, they were available to the trial judge to use in his analysis.
Issue #5: Sufficiency of Reasons regarding Assessment of Appellant’s Credibility
[47] Trial Judge’s Reasons: July 17, 2017 transcript, pages 6 and 7:
Mr. Adjei-Dapaah himself testified. I found him to be a terrible witness in his own behalf. Very self-serving, a string of rationalizations, and even in terms was self-contradictory. He paints himself as morally superior. He says, “I’m intelligent, I’m educated, I know enough not to drink and drive.” So, the arrogance underlying that kind of comment that’s, “I’m not that kind of guy” mentality, that’s contrary to logic, human experience and common sense.
And I find it very cynical because it implicitly suggests that there is a criminal element of drunk drivers out there who are too dumb to know better, and that’s not me, that’s them. And yet in cross-examination, admits he has a prior conviction. There were other contradictions, for instance, during the alcohol influence report, he told Turpin I had two drinks. And here in-chief, he said he had only one. So, in terms of Mr. Adjei-Dapaah’s evidence, I reject it. It’s not credible.
So, in the final analysis, to Mitchell’s observation, we add Kokot’s evidence, his observation and opinions. Plus, our own assessment of being able to watch the video, seeing Mr. Adjei-Dapaah and his behaviour, clearly corroborates the evidence of the two officers, that the accused was borderline conscious. So, in conclusion I do find – I did render a verdict that Mr. Adjei-Dapaah was impaired at the time by the consumption of alcohol, and he was in care and control of a motor vehicle.
[48] I am satisfied that the learned trial judge did not exclusively base his credibility assessment on the arrogant manner in which the appellant testified, as suggested to me by the appellant. Demeanour is one and only one factor to be used in credibility assessments. In this case, the learned trial judge set out other reasons for rejecting the appellant’s evidence. The Crown points to the following:
(a) A finding that the evidence of Mr. Mitchell, and to a lesser extent Cst. Kokot, was credible and persuasive and corroborated by the breath room video.
(b) He found the Appellant to be a “terrible witness” citing his “very self-serving, a string of rationalizations, and even in terms was self-contradictory”. He gives examples including his criminal record and prior inconsistent statement between what he said to the police and what he testified about.
[49] The learned trial judge was entitled to reject his evidence and accept the evidence of Mr. Mitchell, P.C. Kokot and Cst. Turpin.
[50] The trial judge’s reasons are sufficient to permit appellate review. These reasons, read within the context of the totality of the trial evidence, explain why the learned trial judge made the findings he did. It was open for the trial judge to make those findings. It is not the role of an appellate court to retry the case or substitute its views on the evidence called at trial.
[51] This ground of appeal fails.
[52] For all of these reasons, the appeal is dismissed.
[53] The appellant shall surrender himself into custody 72 hours from the date of this judgment.
Fragomeni J. Released: March 25, 2019