Court File and Parties
COURT FILE NO.: 18-0536-00AP
DATE: 2019-04-12
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Leila Mehkeri, for the Respondent Respondent
- and -
UCHE UDUMA Dylan Finlay, for the Appellant Appellant
HEARD: September 20, 2018
REASONS FOR JUDGMENT
[On appeal from the judgment of Carr J. dated December 14, 2017]
BARNES J.
[1] On December 14, 2017, Carr J. of the Ontario Court of Justice convicted Uche Uduma of impaired driving, contrary to s. 253(1) of the Criminal Code, R.S.C., 1985, c. C-46 (now s. 320.14(1)), and refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code (now s. 320.15(1)). For reasons articulated below, Mr. Uduma’s appeal is dismissed.
Background Facts
[2] On March 19, 2016, police responded to a call about a possible impaired driver. Constable MacArthur of the Guelph Police Service followed the vehicle for 15 seconds and observed the vehicle travelling westbound on Speedvale Avenue. The vehicle was straddling the centre lane over the yellow markers. At 12:18 a.m., Constable MacArthur stopped the vehicle. Mr. Uduma was the driver. Constable MacArthur smelled an odour of alcohol emanating from Mr. Uduma’s breath. He observed Mr. Uduma’s movements to be slow and deliberate. Mr. Uduma fumbled his insurance documentation and dropped it on the floor of the vehicle. Constable MacArthur concluded that Mr. Uduma’s ability to operate a motor vehicle was impaired by alcohol consumption and arrested him for impaired driving.
[3] Constable Estabrooks arrived on scene and observed that Mr. Uduma’s eyes were bloodshot, his speech was slurred, and an odour of alcohol was detected on his breath.
[4] Constable Matt Oliver was the breath technician. He testified that after five or six attempts, Mr. Uduma failed to provide a suitable sample of his breath for testing. Mr. Uduma was therefore charged with failing to provide a suitable sample of his breath for testing.
[5] At trial, Mr. Uduma testified that he only had one alcoholic drink and was not able to provide a suitable breath sample due to a medical condition. His testimony was rejected by the trial judge who convicted him on both offences.
Issues
[6] Mr. Uduma raises five grounds of appeal. He alleges that the trial judge:
Failed to consider evidence that undercut the finding of impairment;
Misapprehended the evidence by placing undue weight on the odour of alcohol, and by improperly assessing the admissibility of roadside evidence by considering pre-arrest compelled evidence;
Conducted a credibility assessment based on omissions in Mr. Uduma’s statement to the police, namely by drawing a negative inference from Mr. Uduma’s silence;
Failed to apply R. v. W.(D.) in finding that Mr. Uduma was impaired; and
Demonstrated a reasonable apprehension of bias.
1. Did the trial judge fail to consider alternative explanations for indicia of impairment?
[7] The trial judge considered alternative explanations for indicia of impairment. The trial judge did not misapprehend the evidence or place undue weight on the Appellant’s bloodshot eyes and slow speech.
Position of the Parties
[8] Mr. Uduma submits that despite his explanations for his bloodshot eyes, slow speech, and the trial judge’s own observations of Mr. Uduma’s bloodshot eyes at trial, the trial judge ignored the explanations he provided and included his bloodshot eyes and slow speech in the list of indicia relied on to conclude that the Crown had discharged its onus and that he was guilty of impaired driving.
[9] At trial, Mr. Uduma explained that his bloodshot eyes were caused by an immutable characteristic rather than impairment. He said his slow speech was caused by a deliberate attempt to improve his pronunciation.
[10] The Crown submits that the trial judge referred to and considered the alternative explanations of each of these two indicia, and although he referenced bloodshot eyes and slow speech as indicia of impairment, the trial judge placed greater weight on the manner in which Mr. Uduma operated his vehicle, his slow and deliberate movements, and his slow and slurred speech. The Crown submits that when the trial judge’s reasons are considered in their totality, he considered the alternative explanations advanced. The impaired driving conviction should therefore stand.
Discussion/Analysis
[11] At the time of trial, the offence of impaired operation of a motor vehicle was set out in s. 253(1) of the Criminal Code, which is now s. 320.14(1). The amendment did not change the role of impairment in assessing guilt of this offence. There is no special test for determining impairment: this offence is made out where there is evidence establishing “any degree of impairment from slight to great” on the accused’s ability to operate a motor vehicle: R. v. Stellato, 1993 ONCA 3375, 12 O.R. (3d) 90, at para. 14, aff’d , [1994] 2 SCR 478. Impairment by itself is not a crime; rather, it is its impact on a person’s ability to operate a motor vehicle which is the crux of the analysis. It is in this context that the term “impairment” is used.
[12] An assessment of whether impairment has been proved beyond a reasonable doubt is a factual determination made upon a consideration of the totality of the evidence. The question is “whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person’s ability to drive is impaired”: R. v. Andrews, 1996 ABCA 23, 178 A.R. 182, at p. 18, leave to appeal to SCC refused, [1996] 2 S.C.R. ix (note).
[13] These comments by Justice Durno in R. v. Palanacki (2001), 22 M.V.R. (4th) 104 (S.C.), at para. 11 aptly illustrates the totality of the evidence approach:
I agree with the Chief Justice that when the physical symptoms alone would not support a conviction, a trial judge must examine not only the driving pattern, but all of the evidence, including evidence of non-impairment, in assessing whether the Crown has satisfied the onus. This is consistent with the judgment of Hill J. in R. v. Elvikis (1997), 25 M.V.R. (3d) 256 (Ont. Gen. Div.), relied upon by the Crown, where His Honour found:
Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impairment ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced. Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof. (Emphasis added.)
[14] The sufficiency of the totality of the evidence to support a conviction for impaired driving is central in the analytical review of the trial judge’s reasons. Evidence from the defence explaining observations may convert indicia of impairment into indicia unrelated to impairment. For example, evidence of unsteady posture could be explained by a back or hip condition. The effect of the totality of the evidence test is that observations which do not seem to be indicia of impairment when considered alone may be found to be indicia of impairment when considered in conjunction with other observations. The converse can also be true. Observations may seem to be indicia of impairment when standing alone and may not constitute indicia of impairment when considered in conjunction with other observations. Thus, evidence considered alone could lead to a particular conclusion, but may result in a different conclusion when considered in conjunction with other evidence.
[15] The totality of the evidence test is much like putting together a puzzle. The individual pieces of the puzzle are extremely important but do not tell the trier of fact much on their own. It is only after the entire puzzle is completed that the entire picture materialises. This enables the trier of fact to determine whether the picture supports a finding of impairment or non-impairment, or is ambiguous and thus fails to prove impairment beyond a reasonable doubt.
[16] The question of whether a person’s ability to drive is impaired by alcohol is a question of fact: R. v. Choi, 2016 ONSC 2308, at para. 20. The standard of review on questions of fact is one of deference: R. v. McConaghie, 2017 ONCA 306, 10 M.V.R. (7th) 195, at para. 13. On appeal, the test is whether the factual findings made by the trial judge could have been reasonably reached on the evidence.
[17] Deference on findings of fact is displaced where the trial judge has misapprehended evidence that is relevant to the issue, is material to the trial judge’s reasoning, and plays a central part in conviction: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2, 4.
[18] As noted in R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561, at para. 32, leave to appeal to SCC refused, [2011] S.C.C.A. No. 235, a summary conviction at trial should be set aside where:
It cannot be supported by the evidence;
It is clearly wrong in law;
It is clearly unreasonable; or
There has been a miscarriage of justice.
[19] The trial judge considered individual pieces of evidence in isolation, drew a number of conclusions, and then summarized his final conclusion upon considering the totality of the evidence – which, in effect, is a consideration of individual pieces of evidence in conjunction with one another. He stated, at pp. 87 (lines 14-33) and 88 (lines 1-2) of his reasons for decision:
In the end, when I consider the charge of impaired driving, I find that the indicia of impairment are not overwhelming. But when I look at all the indicia cumulatively, and I include in that the fumbling with the pink slip of the insurance and the eyes, but in particular the odour of alcohol, the operation of the motor vehicle, the slow and deliberate movements, and the speech being slurred and slow, it is my view that Regina v. Stellato is applicable. And that case, as we all know, indicates that any degree of impairment, slight to great, is sufficient to ground this offence.
While I would find that the degree of impairment exhibited by this accused was on the lower end, I find that it was still impairment and am satisfied beyond a reasonable doubt that he is guilty of the charge of impaired driving.
[20] The trial judge considered Mr. Uduma’s explanation for slow speech and determined that although his speech was slow at trial, it was not slurred. During trial submissions, at p. 3, this exchange took place:
Mr. DONEY: … [Y]ou’ve heard him today. He’s a slow speaker. Slurred words, well, he speaks with a strong accent, so that might create some problems at that level.
THE COURT: I didn’t notice any slurring, though.
MR. DONEY: I, I, I listened for it today and I can’t argue with the court about that. I-m I, I, I, I’m thinking of the night in question’s cold weather, he’s not - he speaks English. There – at – definitely accented. I leave it for the court to draw an inference in terms of what it saw, but it seemed to me that might be an issue.
[21] Mr. Uduma explained that his bloodshot eyes were due to an immutable characteristic. His slow speech was due to his efforts to reduce his accent and enhance comprehension of his spoken English. In his reasons for decision, the trial judge observed that Mr. Uduma’s eyes were bloodshot in court, but determined that this was not a significant observation. I am satisfied that, if accepted, these explanations standing alone would negate a reasonable finding that they constitute indicia of impairment. However, as discussed below, the trial judge correctly considered those factors within his analysis on the whole of the evidence in finding guilt.
[22] The trial judge accepted that it was possible that nervousness could be a reason for Mr. Uduma mishandling his insurance documentation. He concluded that although Mr. Uduma’s speech was slow in the normal course, it was slurred on the night of the incident and his movements were also slow and deliberate that night. The trial judge also accepted the evidence of improper driving provided by Constable MacArthur. Due to these observations, considered in conjunction with the strong odour of alcohol, the trial judge rejected Mr. Uduma’s evidence that he had only consumed one alcoholic drink. When considering these factors in their totality, the trial judge regarded these findings as indicia of impairment: see the reasons for decision, at pp. 82 (lines 3-9), 83 (lines 10-26), 85 (lines 18-27); see also the trial submissions, at pp. 1 (lines 13-31), 2, 3 (lines 1-20).
[23] The trial judge is required to apply the totality of the evidence test and he did so. In so doing, he considered the alternative explanations proffered by Mr. Uduma. When his reasons are read in their entirety, it is clear that he concluded that Mr. Uduma’s explanations for slow speech and his bloodshot eyes and the trial judge’s own observations of bloodshot eyes on the day of trial did not raise a reasonable doubt on the issue when considered in conjunction with other observations. He concluded that, cumulatively, the evidence constituted indicia of impairment: reasons for decision, pp. 87 (lines 14-33), 88 (lines 1-2). This was a finding open to the trial judge.
2. Did the trial judge misapprehend the evidence by placing undue weight on the odour of alcohol and by considering pre-arrest compelled evidence?
[24] The trial judge did not misapprehend the evidence and did not place undue weight on the odour of alcohol. No compelled evidence was elicited from Mr. Uduma prior to his arrest.
Position of the Parties
[25] Mr. Uduma submits that the trial judge misapprehended the evidence when he placed particular emphasis on the odour of alcohol and when he considered compelled evidence prior to arrest in convicting him for driving while impaired.
[26] The Crown submits that the trial judge did not place undue weight on the odour of alcohol. The trial judge’s conclusion was grounded in additional indicia, which were Mr. Uduma’s slow and deliberate movements, fumbling, and poor driving. The Crown further submits that none of Constable MacArthur’s pre-arrest observations were compelled by way of a field sobriety test; therefore, his observations can be properly considered by the trial judge. The trial judge committed no error in considering Constable MacArthur’s pre-arrest observations.
Discussion/Analysis
[27] The trial judge did not rely only on the odour of alcohol to convict. He was entitled to consider the odour of alcohol in conjunction with other evidence. Justice Carr did not misapprehend the evidence.
Odour of alcohol
[28] The odour of alcohol alone is insufficient to support a finding of impairment: R. v. Landes (1997), 161 Sask. R. 305, at para. 21, cited in R. v. Hawkins, [2015] O.J. No. 3446 (C.J.), at para. 38; R. v. Logan, [2006] O.J. No. 2445 (S.C.); and R. v. Martin, 2016 ONCJ 799, at paras. 41-42; see also Lohrer, at para. 2. Simply put, it is not a crime to consume alcohol. The trial judge must consider the totality of the evidence to determine whether the charge of impaired driving has been proven beyond a reasonable doubt: Andrews, at para. 28. Proof of any degree impairment from slight to great can support a finding of guilt: Stellato, at para. 14.
[29] In addition, the fact that the odour of alcohol alone is not determinative of the issue of whether a person is impaired while operating a motor vehicle does not mean that the odour of alcohol together with other evidence can never satisfy the Stellato criteria.
[30] This is explained by Hill J. in R. v. Censoni (2007), 22 M.V.R. (4th) 178 (S.C.), at para. 45-47 as follows:
it is an error to assume that bad driving and an odour of alcohol can never amount to an offence of impaired driving. This is because impairment is not a “simple mathematical exercise of comparing a list of factors supporting impairment to drive with a second list of factors pointing in the opposite direction.” It will depend on the totality of the circumstances. See, also, R. v. Palanacki (2001), 22 M.V.R. (4th) 104 (S.C.), at para. 10, where Durno J. noted that it may be that in some cases, bad driving and the smell of alcohol are alone sufficient to show impairment without additional indicia of impairment, such as slurred speech.”
[31] In convicting Mr. Uduma for impaired driving, it is worth repeating what the trial judge held in his reasons, at p. 87 (lines 14-27):
In the end, when I consider the charge of impaired driving, I find that the indicia of impairment is not overwhelming. But when I look at all the indicia cumulatively, and I include the fumbling with the pink slip of insurance and the eyes, but in particular the odour of alcohol, the operation of the motor vehicle, the slow and deliberate movements, and speech being slurred and slow, it is my view that Regina v. Stellato is applicable. And that case, as we all know, indicates that any degree of impairment, slight to great, is sufficient to ground this offence.
[32] The trial judge is required to apply a totality of evidence test and he did so. The trial judge’s use of the words “in particular the odour of alcohol” does not elevate his reasons into a circumstance where he relied on the odour of alcohol alone to convict. While sole reliance on odour of alcohol is an error, that is not what occurred in this case.
[33] The trial judge rejected Mr. Uduma’s evidence that he consumed only one alcoholic drink. The trial judge found that the strong smell of alcohol and other observations, which he considered to be other indicia of impairment, belied this assertion. The odour of alcohol became significant when considered in conjunction with the fumbling of insurance documentation; slow and slurred speech; improper driving; bloodshot eyes; and slow and deliberate movements. In effect, each indicia took on added significance when considered cumulatively. For example, Mr. Uduma’s explanation that his bloodshot eyes were due to an immutable characteristic or the trial judge’s own observations of Mr. Uduma’s bloodshot eyes at trial were not significant on their own and did not raise a reasonable doubt when considered in conjunction with all of the evidence. On the evidence, these factual findings were open to the trial judge.
[34] The odour of alcohol became significant only when considered in conjunction with other evidence. The trial judge did not rely on the odour of alcohol alone to support his conviction. Mr. Uduma’s submission that the trial judge used the odour of alcohol as a tiebreaker to support a conviction fails to appreciate the cumulative nature of the totality of evidence test. The trial judge did not misapprehend the evidence.
Pre-arrest evidence
[35] The trial judge rejected Mr. Uduma’s evidence where it differed from that of Constable MacArthur. He noted that it was possible that Mr. Uduma was nervous when handling his insurance documentation, but preferred Constable MacArthur’s evidence that Mr. Uduma was fumbling for his insurance documentation due to impairment: reasons for decision, pp. 85 (lines 26-27), 87 (lines 19-28).
[36] Prior to Mr. Uduma’s arrest and prior to receiving rights to counsel, Constable MacArthur observed Mr. Uduma driving badly; fumbling with his insurance slip; moving slowly and deliberately; and having slow and slurred speech and bloodshot eyes. These pre-arrest observations are inadmissible at trial if made while Mr. Uduma was compelled to participate in sobriety tests. An observation made while an accused is taking a sobriety test is inadmissible at trial because the accused has been compelled to participate in activity that produces self-incriminating evidence: R. v. Milne (1996), 28 O.R. (3d) 577 (C.A.), at paras. 40-47, leave to appeal to SCC refused, [1996] S.C.C.A. No. 353; R. v. Quenneville, 2009 ONCA 325; R. v. Brode, 2012 ONCA 140, 109 O.R. (3d) 481, at paras. 57-63; and R. v. Bijelic, [2008] O.J. No. 1911 (S.C.), at para. 31.
[37] During cross-examination, at p. 15 of the trial transcript, Constable MacArthur said Mr. Uduma did not participate in any sobriety tests:
Q. But you don’t have him out of the motor vehicle and provide any physical tests?
A. No.
Q. Right. And there’s no point at which you provide any physical tests?
A. No.
[38] There was no evidence at trial and no basis upon which a determination can be made that Mr. Uduma participated in sobriety testing of any kind. Thus, the trial judge was correct in considering the pre-arrest observations of Mr. Uduma as trial evidence.
3. Did the trial judge draw a negative inference for Mr. Uduma’s silence and use his silence to reject evidence proffered as a reasonable excuse?
[39] The trial judge did not draw a negative inference from Mr. Uduma’s silence and did not use his silence to assess his credibility or to reject evidence that Mr. Uduma proffered as a reasonable excuse for his failure to provide a suitable breath sample for analysis.
Position of the Parties
[40] Mr. Uduma submits that the trial judge drew a negative inference and rejected his evidence based on his decision to remain silent. Mr. Uduma’s complaint stems from this excerpt from the trial judge’s reasons for decision, at p. 86 (lines 20-30):
He says that he tried to blow, but could not. He never told the officers that there was a reason for this. He wanted to take a blood test. Of course, the officers are not going to agree to that unless there is some good reason for it. And no reason was given. And indeed both officers or all three officers felt there was no problem with his breathing, and that he was perfectly capable of giving samples of his breath.
[41] The Crown submits that the trial judge did not rely on this comment to draw any inferences or for any purpose in his reasons for decision. I agree. This impermissible reference to Mr. Uduma’s right to silence is simply left “hanging.” Though referenced, it was not part of the trial judge’s reasoning process.
Discussion/Analysis
[42] An accused’s decision to exercise his or her right to silence cannot be used to their detriment. It cannot be used to infer guilt or to reject an accused’s evidence: R. v. Poirier (2000), 133 O.A.C. 352 (C.A.), at para. 18; R. v. Rohde, 2009 ONCA 463, 264 O.A.C. 257, at para. 18; and R. v. Palmer, 2008 ONCA 797, 181 C.R.R. (2d) 134, at para. 9. The trial judge’s reference to Mr. Uduma’s failure to provide a reason for failing to provide a breath sample is unfortunate. However, it is the use he made of this reference in his reasoning that is the crux of the analysis.
[43] The reference is in relation to the offence of refusing to provide a breath sample. During trial submissions and in his reasons for decision, the trial judge commented on the implausibility of defence medical evidence of Mr. Uduma’s asthma induced by cold weather and Mr. Uduma’s assertion that this was why he could not provide a suitable breath sample for testing.
[44] The trial judge concluded that Mr. Uduma could not have been suffering from asthma at the time he provided the breath sample. This is because the medical evidence he proffered states that his asthma is induced by cold weather. The police car transporting him to the station was warm. The room in which the tests were taken was warm. In addition, observations by the officers of the physical characteristic exhibited by Mr. Uduma during his efforts to provide a sample are inconsistent with an asthma attack. Specifically different types of blow, puffy cheeks, blowing out of the side of his mouth – Mr. Uduma had puffed up his cheeks and did not blow into the machine. The trial judge found that Mr. Uduma was uncooperative throughout his interaction with the police, that this attitude extended to giving the breath sample, and that it was not Mr. Uduma’s intention to provide a breath sample at all: see the trial submissions, pp. 4. (lines 8-33), 5-9 (line 5); and the reasons for decision, pp. 85 (line 26), 86,87 (line 14), 88 (lines 4-20). On complete review of the record, I conclude that the reference to Mr. Uduma’s right to silence, though unfortunate, was not utilised by the trial judge directly or indirectly to assess credibility or for any other purpose.
[45] If the trial judge had utilised Mr. Uduma’s right to silence in an impermissible manner, any finding made as a consequence would be in error and would not stand. However, on the facts of this case, that was not done. Further, even without reference or reliance on Mr. Uduma’s exercise of his right to silence, there was still a reasonable basis for a finding that Mr. Uduma was generally uncooperative, and on the evidence that stance can reasonably lead to the conclusion that he had no intention to provide a suitable breath sample.
4. Did the trial judge fail to apply R. v. W.(D.) in finding that Mr. Uduma was impaired?
[46] The trial judge did not articulate the test for resolving issues of credibility set out in R. v. W.(D.), [1991] 1 S.C.R. 742. W.(D.) stands for the proposition that in assessing credibility when an accused testifies, there are three stages to consider. First, if the accused’s evidence is believed, he or she must be acquitted. Second, if the accused’s evidence is not believed but it raises a reasonable doubt, he or she must be acquitted. Third, even if the accused’s evidence does not raise a reasonable doubt, the remaining evidence must show that the accused is guilty beyond a reasonable doubt. When the reasons for judgment are considered in their entirety, it is apparent that the trial judge correctly applied the principles in W.(D.). The trial judge rejected Mr. Uduma’s evidence: Mr. Uduma’s evidence did not raise a reasonable doubt, and he was satisfied upon the evidence he did accept that the Crown had proved the offences beyond a reasonable doubt.
Position of the Parties
[47] Mr. Uduma submits that the trial judge lowered the evidentiary threshold for conviction under the third prong of the W.(D.) test by adopting Constable MacArthur’s smell of the odour of alcohol as a “tiebreaker” and by considering evidence compelled prior to arrest. Further, instead of applying the W.(D.) test, the trial judge “used R. v. Stellato to bridge the gap between Constable MacArthur’s grounds for arrest and proof of impairment beyond a reasonable doubt.” I disagree.
Discussion/Analysis
[48] The trial judge made findings of credibility available to him on the evidence, and therefore his factual findings are entitled to deference on appeal: R. v. Cresswell, 2009 ONCA 95, at para. 14. These findings formed the basis for his rejection of Mr. Uduma’s evidence and his conclusion that it did not raise a reasonable doubt.
[49] The trial judge found that Mr. Uduma was totally uncooperative with the police. He struggled and tensed up at the roadside because he said he was too big to fit into the police vehicle. Mr. Uduma’s concern was without merit. Mr. Uduma was also uncooperative at the station, refusing to sit on a police bench, and had to be wrestled to sit on that bench: see the reasons for decision, pp. 83 (lines 13-22), 84 (lines 1-6).
[50] The strong odour of alcohol emanating from Mr. Uduma’s breath contradicted Mr. Uduma’s testimony that he only consumed one alcoholic beverage. The trial judge rejected this testimony: reasons for decision. pp.85( line 1826).
[51] Carr J. rejected Mr. Uduma’s testimony that he did not know the drinking and driving laws and that the police officers were trying to get under his skin: reasons for decision, pp. 86 (lines 5-19).
[52] Carr J. did not accept Mr. Uduma’s evidence that he could not provide a proper breath sample because he was suffering from cold-induced asthma. Carr J. noted that the conditions for a cold-induced asthma, postulated by defence expert Dr. Nemni, did not exist in the warm police car used to transport him to the police station or in the police station where the breath test was administered: reasons for decision, pp. 86 (line 35), 87 (lines 1-13).
[53] The trial judge found that even though Mr. Uduma’s eyes were bloodshot on the day of trial, this fact was not determinative. “It is clear that Mr. Uduma’s eyes are bloodshot today. I am not sure I can take much from that observation”: reasons for decision, p. 82 (lines 23-25).
[54] The trial judge rejected Mr. Uduma’s evidence that he had only one drink. He found Mr. Uduma to be rambling and unresponsive in his testimony: reasons for decision, p. 85 (lines 17-33).
[55] The trial judge accepted evidence of bad driving; slow and deliberate movements; slow and slurred speech; bloodshot eyes; and odour of alcohol on Mr. Uduma’s breath. Applying the totality of the evidence test, he concluded that the cumulative effect of all of the evidence was that the Crown had met its onus of proof on the impairment test. For the reasons as articulated above, I have concluded that the trial judge applied the correct test and approach to the evidence.
[56] The trial judge applied W.(D.) correctly and did not lower the evidentiary threshold required for conviction.
5. Reasonable Apprehension of Bias
[57] Mr. Uduma abandoned his last ground of appeal alleging a reasonable apprehension of bias on the part of the trial judge.
Conclusion
[58] Mr. Uduma’s appeal is dismissed.
Barnes J.
Released: April 12, 2019