COURT FILE NO.: CR-18-40000076-00AP
DATE: 20190918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DANIO BRIENZA
Appellant
K. Lockhart, for the Respondent
E. Hilzenrat, for the Appellant
HEARD: June 19, 2019.
REASONS FOR JUDGMENT
On appeal from the convictions entered on July 27, 2018 by the Honourable Justice J. Chaffe of the Ontario Court of Justice.
SCHRECK J.:
[1] Danio Brienza represented himself at his trial on charges of having the care or control of a motor vehicle while impaired and refusing to provide a breath sample. He now appeals the convictions that resulted from that trial, primarily on the grounds that the trial judge failed to provide him with adequate assistance.
[2] In my view, with one exception, the trial judge did everything he could to provide assistance to Mr. Brienza and ensure that the trial was fair. The one exception is that he failed to explain to Mr. Brienza that the Crown was entitled to rely on the presumption in s. 258(1)(a) of the Criminal Code, which provides that an accused who occupies the driver’s seat of a vehicle is presumed to be in care or control of it unless he establishes that he did not intend to put the vehicle in motion. In my view, without being aware of this presumption, Mr. Brienza was unable to make a meaningful and informed decision about whether to call evidence in his defence. As a result, the fairness of the trial with respect to the care or control charge was compromised and I would order a new trial on that charge. The omission had no effect on the conviction for refusing to provide a breath sample and I would dismiss the appeal with respect to that charge.
I. EVIDENCE
A. The Collision
[3] At around 6:00 or 6:10 a.m. on January 11, 2016, a man on his way to work, Huu Hua Hung, saw a vehicle collide with a hydro pole on Oakdale Road. Mr. Hung was unable to specify where on Oakdale Road this occurred, other than that it was at an intersection. After colliding with the pole, the vehicle drove off toward Sheppard Avenue. The pole was “half fallen down” as a result of the collision. Mr. Hung was unable to see the vehicle or its driver clearly, but it appeared to him to be a dark blue pick-up truck.
B. Observations of the Appellant
[4] At around 6:30 a.m., Jorge Vega, a tow truck driver, was dispatched to pick up a vehicle at 150 Oakdale Road. While on his way to that location, he saw a hydro pole that had been knocked down. After speaking to a police officer who was on the scene, Cst. Oliver Simpson, Mr. Vega continued on to 150 Oakdale Road.
[5] Upon arriving at his destination, Mr. Vega saw a dark blue van parked on private property. There was damage to the front of the van. A man later identified as the appellant exited the vehicle from the driver’s door, approached the tow truck and spoke to Mr. Vega. According to Mr. Vega, the appellant was not speaking clearly or making sense and appeared to be intoxicated. The appellant told Mr. Vega that his car would not start and that he did not know what had happened to it. Mr. Vega saw the appellant try unsuccessfully to start the car. Mr. Vega believed that the car was inoperable as a result of the damage to the front of it.
[6] Mr. Vega left the appellant and returned to the location of the damaged hydro pole. He told Cst. Simpson that the appellant may have been responsible for the damage to the pole and appeared to be intoxicated. Cst. Simpson went to the location of the appellant’s vehicle and saw the appellant exit the vehicle from the driver’s door. The appellant told Cst. Simpson that his vehicle had broken down. He confirmed that he had been driving the vehicle but denied that he had been involved in a collision.
[7] While speaking to the appellant, Cst. Simpson noticed indicia of impairment, including a strong odour of alcohol and unsteadiness. The appellant had difficulty locating his ownership and insurance documents, so Cst. Simpson went into the van to assist him. He noticed that the keys were in the ignition but could not recall if the van was running.
[8] At 7:02 a.m., Cst. Simpson arrested the appellant for having the care or control of a vehicle while impaired. He advised him of his right to counsel and read him a breath demand. The appellant was than transported by another officer to the police station.
C. Refusal to Provide a Breath Sample
[9] At the police station, a qualified breath technician asked the appellant to provide samples of his breath into an approved instrument. The appellant engaged in a number of tactics to avoid providing the samples. He repeatedly asked to go to the bathroom and to be given water. He initially refused to enter the breath room, claiming that he was prohibited from doing so because of a sign that said “no entry”. He claimed that the tube of the instrument was too hot. He attempted to plug the mouthpiece of the instrument with toilet paper he had secreted in his mouth. Ultimately, he provided only one sample. The breath technician repeatedly warned the appellant of the consequences of refusing to provide a sample and eventually advised him that he would be charged as a result of his refusal. All of these events were recorded on video and the recording was introduced into evidence at trial.
[10] After the appellant was told that he would be charged with refusing to provide a sample, he repeatedly requested another opportunity to do so. When the technician did not agree to provide him with another opportunity, he became belligerent and had to be forcibly removed from the breath room.
II. THE TRIAL JUDGE’S REASONS
A. Care or Control While Impaired
[11] The trial judge concluded that while there was significant circumstantial evidence that the appellant was the driver of the vehicle that collided with the hydro pole, he was not satisfied of this beyond a reasonable doubt. He was, however, satisfied that the appellant was guilty of being in care or control of the van while impaired:
Mr. Brienza argued that the van was inoperable and that the Crown failed to prove it so. The evidence relied upon was that of the tow operator and Officer Simpson. Neither witness attempted to start the vehicle, and both, relying on their observations of the nearby accident scene, were of the view that the vehicle had been driven from the scene to the parking area of 150 Oakdale. That said, whether or not the van was operable or not, whether it presented a “risk of danger”, is not relevant in this case.
The Crown in this case relied on the presumption created by s. 258(1)(a). Mr. Brienza was found in the driver’s seat of the van and was presumed to have care and control of the vehicle. There is no evidence to rebut the presumption that he was in care and control of the vehicle. The fact that the van was damaged and that Mr. Brienza had called for a tow truck does not rebut that presumption.[^1]
B. Refusal to Provide a Breath Sample
[12] The trial judge concluded that the appellant’s conduct as seen on the video recording was “overwhelming evidence of his refusal to provide a breath sample” despite being given an ample opportunity to do so. The trial judge found that the appellant’s requests to be given another opportunity after being charged were not genuine and that the refusal was already complete by that time.[^2]
III. ANALYSIS
A. Overview of Applicable Legal Principles
[13] The appellant submits that the trial judge failed to provide him with the necessary level of assistance to ensure a fair trial. The scope of a trial judge’s obligation to assist an unrepresented accused was described by Watt J.A. in R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at paras. 110-112:
Where an accused is self-represented, a trial judge has a duty to ensure that the accused has a fair trial. To fulfill this duty, the trial judge must provide guidance to the accused to the extent the circumstances of the case and accused may require. Within reason, the trial judge must provide assistance to aid the accused in the proper conduct of his defence and to guide him as the trial unfolds in such a way that the defence is brought out with its full force and effect: R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at para. 13; R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 156 C.C.C. (3d) 1 (Ont. C.A.), at para. 22; R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 (Ont. C.A.), at p. 347.
The duty owed by trial judges to self-represented litigants is circumscribed by a standard of reasonableness. The trial judge is not, and must not become, counsel for the accused. The judge is not entitled, indeed prohibited, from providing the assistance of the kind counsel would furnish when retained to do so: Chemama, at para. 14; R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), at para. 30; R. v. Turlon (1989), 1989 CanLII 7206 (ON CA), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191; McGibbon, at p. 349. A standard of reasonableness accommodates a range of options to ensure the necessary degree of assistance and eschews a single exclusive response.
The onus on the trial judge to assist the self-represented accused is a heavy one. This characterization means that it is not enough that the verdict at the end of the trial is or appears correct. What matters is whether the trial has been fair to the self-represented accused: Tran, at para. 31; R. v. Dimmock (1996), 1996 CanLII 2292 (BC CA), 47 C.R. (4th) 120 (B.C. C.A.), at para. 20.
[14] Depending on the circumstances, the trial judge may be required to “explain the relevant law in the case and its implications, before the self-represented person makes critical choices”: Canadian Judicial Council, “Statement of Principles on Self-Represented Litigants and Accused Persons” (2006), at p. 7 (endorsed in Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4). This may include explaining “his right to call witnesses and to testify, [and] the risks inherent in testifying and not testifying”: R. v. Tran (2001), 2001 CanLII 5555 (ON CA), 55 O.R. (3d) 161 (C.A.), at para. 33.
[15] In considering whether a trial judge has fulfilled his obligation to an unrepresented accused, it must be borne in mind that a trial judge also has other duties, including ensuring that the trial is fair to all parties and is conducted efficiently: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 16. Ultimately, the question to be determined is whether the trial was fair. Not every breach of a trial judge’s obligation to a self-represented accused will result in a miscarriage of justice: Forrester, at paras. 17-18.
[16] Whether a trial judge adequately assisted an unrepresented accused requires “a careful and detailed examination of the complete trial record” and “an evaluation of the trial judge’s action in light of the facts and circumstances of the particular case”: R. v. Phillips, 2003 ABCA 4, 320 A.R. 172, at para. 26, aff’d 2003 SCC 57, [2003] 2 S.C.R. 623; R. v. Moghaddam, 2006 BCCA 136, 206 C.C.C. (3d) 497, at para. 52; R. v. Neidig, 2018 BCCA 485, 425 C.R.R. (2d) 262, at para. 94.
B. The Overall Conduct of the Trial
[17] The trial judge was fully cognizant of his responsibility to assist the appellant. He carefully explained the trial procedure to him, answered the appellant’s questions and repeatedly gave the appellant breaks so that he could properly prepare his questions for the witnesses.
[18] There is no merit to the appellant’s suggestion that the trial judge improperly curtailed his cross-examinations. The trial judge quite properly pointed out to the appellant the distinction between cross-examination and submissions, always making it clear to the appellant that he would have a full opportunity to present his arguments at the appropriate time. On other occasions, the trial judge made suggestions to the appellant as to how he could better frame his questions. While there were occasions when the trial judge suggested to the appellant that he should complete his cross-examination of a witness, this only occurred where the appellant was asking repetitious questions.
[19] There is also no merit to the submission that the trial judge failed to make inquiries into the adequacy of disclosure. To the contrary, the trial judge was careful to ensure that the appellant was not only provided with full disclosure, but also that he had an opportunity to review it. There has been no fresh evidence application in this Court suggesting that the disclosure had been incomplete or that there had been lost evidence that had impeded the appellant’s ability to make full answer and defence.
[20] However, for the reasons explained below, I take a different view with respect to the trial judge’s failure to explain the elements of the offence of care or control and the existence of the presumption in s. 258(1)(a) of the Criminal Code.
C. The Failure to Explain the Presumption and the Elements of the Offence
(i) What the Appellant Was Told
[21] At the beginning of the trial, the trial judge explained the procedure whereby the Crown would call its case and then continued as follows:
And then when it is your turn to present a defence, if you want to present a defence, because you are not obligated to, it is up to the Crown to prove these charges beyond a reasonable doubt. There is no onus on you to disprove them.[^3]
[22] Later, after the Crown closed its case, the trial judge said:
Mr. Brienza, the Crown has closed its case. It’s now your opportunity to call evidence if you want. You’re under no obligation to call any evidence in this trial. You’re innocent until proven guilty, and you’re not under any positive obligation to call evidence.
The appellant responded that he did not intend to testify. The trial judge then said:
All right. So, you do not intend to call any witnesses of your own? You are not obligated, sir, and it is a difficult decision for lawyers even, sometimes, if they want to call Defence evidence or not. So, I am not being critical. I just want to make sure I understand you.
The appellant confirmed that he would not call evidence.[^4]
(ii) The Presumption
[23] Unfortunately, in the circumstances of this case, the trial judge’s assertion that “it is up to the Crown to prove these charges beyond a reasonable doubt” and that there was no onus on the appellant to disprove them was not entirely accurate. As the trial judge noted in his reasons, the Crown was entitled to and did rely on the presumption in s. 258(1)(a) of the Criminal Code which provides that where an accused is found in the driver’s seat of a vehicle, he “shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle … in motion”.[^5]
[24] In this case, while there was an issue with respect to whether the appellant was the driver of the vehicle that struck the hydro pole, there was overwhelming evidence that he occupied the driver’s seat of the van at the time he was observed by Cst. Simpson and the tow truck driver. While the appellant suggested in his submissions that the police officers and the tow truck driver did not see him exit the vehicle, he did so in the context of an argument that the police did not have grounds to arrest him. Both Mr. Vega and Cst. Simpson testified to seeing the appellant exit the vehicle from the driver’s door and it was inevitable that the trial judge would find as a fact that he did.
[25] Once it was established that the appellant occupied the driver’s seat, there was no onus on the Crown to prove that the appellant was in care or control of the vehicle. Section 258(1)(a) of the Criminal Code deemed him to be so unless he could establish that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. In my view, it was incumbent on the trial judge to ensure that the appellant was aware of this presumption before making a decision whether to call evidence.
(iii) Significance of the Omission
[26] There are three reasons why the failure to explain the presumption in s. 258(1)(a) was significant. The first was that the trial judge never explained the essential elements of any of the offences, so it is not clear that the appellant ever understood exactly what it was that the Crown was required to prove, let alone what it was presumed to have proven. While there is no requirement for a trial judge to explain the essential elements of the offences in every case involving a self-represented accused, in my view it will almost always be advisable to do so: Moghaddam, at paras. 49-50; Phillips, at para. 48 (C.A.); R. v. Brier, 2015 ONSC 1770, 331 C.R.R. (2d) 146, at para. 35. An accused who is aware of what the Crown must prove is more likely to be able to engage in focussed and effective cross-examinations and oral submissions and will be better able to make a fully informed decision about whether to call evidence.
[27] Second, the trial judge was not satisfied beyond a reasonable doubt that the appellant was the driver of the vehicle that struck the hydro pole. As a result, the appellant’s position in the driver’s seat was critical to the finding that he was in care or control of the vehicle.
[28] The third reason is that there was at least some evidence that the van was inoperable. Mr. Vega, the tow truck driver, testified that he had observed the appellant try unsuccessfully to start the van and that it was his belief that it was inoperable due to the damage at the front. A finding that a vehicle is inoperable can, in some cases, be capable of rebutting the presumption in s. 258(1)(a): R. v. Amyotte, 2009 CanLII 66900 (Ont. S.C.), at para. 102; R. v. Ablack, 2016 ONCJ 290, at para. 65; R. v. Rule, 2015 ONCJ 253, at para. 54; R. v. Gulak, 2015 ONCJ 130, at para. 20, aff’d 2017 ONSC 3576; R. v. Jonah, 2015 NBPC 2, 437 N.B.R. (2d) 21, at paras. 39-50; R. v. Lanno, 2014 ONCJ 655, at paras. 28-30; R. v. Coomansingh, 2014 ONCJ 560, at paras. 30-35; R. v. Lu, 2013 ONCJ 73, at paras. 27-30. Indeed, the appellant made this argument during his closing submissions:
Well, if it was impaired driving, nobody could ID myself. And if it’s care and control we have to remember that the vehicle was inoperable. Engine was not capable to turn. Not capable to move.[^6]
[29] The trial judge was not satisfied that the van was inoperable and noted that neither Mr. Vega nor Cst. Simpson had tried to start it. I disagree with the appellant that that finding was unreasonable. It was certainly open to the trial judge to draw that conclusion on this record. But that is not the issue. The issue is whether the appellant ought to have been made aware that unless he could establish that the van was inoperable or that the presumption was somehow otherwise rebutted, he would be deemed to be in care or control. In my view, he ought to have been.
(iv) The Respondent’s Argument
[30] The respondent submits that the trial judge’s decision to not advise the appellant whether to testify was reasonable “because if the appellant had testified, he may not have been able to explain things such as putting toilet paper into the mouthpiece of the approved instrument. Since the Crown did not have to prove care and control on the refusal charge, it was difficult to tell what the appellant’s ‘best tactical decision’ was.”[^7] Respectfully, this submission is based on a misconception of the nature of a trial judge’s obligations towards an unrepresented accused. There is no question that the trial judge was not required to advise the appellant whether to testify or what his best tactical decision would be. Indeed, it would have been manifestly inappropriate for him to do so: R. v. Chemama, 2016 ONCA 579, 351 O.A.C. 381, at para. 14. What the trial judge was required to do was to “explain the relevant law … before the self-represented person makes critical choices”: Statement of Principles, at p. 7 (emphasis added).
[31] In any event, there may well have been ways for the appellant to demonstrate inoperability of the vehicle other than his own testimony such as, for example, calling a mechanic who had inspected the van.
[32] Ultimately, the issue is not whether the appellant would have been able to successfully rebut the presumption or whether the verdict was correct: Richards, at para. 124. Rather, the issue is whether the trial judge’s failure to provide the appropriate level of assistance compromised the fairness of the trial. In my view, it did. Without understanding what the Crown was and was not required to prove, the appellant did not have sufficient information to make a fully informed decision about whether to testify or call evidence.
D. The Refusal to Provide a Breath Sample Count
[33] The issues with respect to the trial judge’s failure to explain the presumption have no impact on the conviction for refusing to provide a breath sample. It is clear from the record that the appellant fully understood the essential elements of that offence and the evidence which applied to it. The trial judge’s conclusion that the offence was proven is well supported by the evidence.
IV. DISPOSITION
[34] With respect to Count 1, the appeal is allowed, the conviction is set aside and a new trial is ordered. With respect to Count 2, the appeal is dismissed.
Justice P.A. Schreck
Released: September 18, 2019.
COURT FILE NO.: CR-18-40000076-00AP
DATE: 20190918
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DANIO BRIENZA
REASONS FOR JUDGMENT
P.A. Schreck J.
Released: September 18, 2019.
[^1]: Reasons for Judgment, paras. 21-22.
[^2]: Reasons for Judgment, paras. 23-27.
[^3]: Transcript – November 1, 2017, p. 25, ll.13-18.
[^4]: Transcript – July 3, 2018, p. 29, l.8-p.30, l.10.
[^5]: Section 258(1)(a) has since been replaced by s. 320.35 by An Act to Amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21.
[^6]: Transcript – July 3, 2018, p.46, ll.13-16.
[^7]: Respondent’s Factum, para. 27.