Court File and Parties

Court File No.: 16-11582 Date: 2019/02/07 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Michel Eduardo Champagne, Appellant

Counsel: Moiz Karimjee, for the Respondent Matthew Day, for the Appellant

Heard: January 23, 2019

Reasons for Decision A. E. London-Weinstein J.

[1] Michel Champagne was convicted of being in care and control of a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood, by Justice M. Hoffman of the Ontario Court of Justice on November 17, 2017.

[2] Mr. Champagne appeals that conviction on the grounds that the trial judge misapprehended evidence and failed to consider, or give proper effect to evidence.

[3] The trial judge’s decision to convict the accused hinged on whether or not he found as a fact that the accused had exited his vehicle while that vehicle was parked in the accused’s driveway. If he found that the accused had exited the vehicle prior to the arrival of the police, it was agreed by all parties that Mr. Champagne would have rebutted the presumption that he was in care and control of the vehicle while he was impaired by consumption of alcohol.

[4] The trial judge rejected the testimony of the accused as not being credible. He found that the accused lied about driving through a stop sign without stopping, and that he lied to police about how much alcohol he had consumed.

[5] The appellant argues that having rejected the testimony of the accused, the trial judge failed to consider or give proper effect to a body of evidence which the appellant argues could establish that the appellant had exited his vehicle when he returned home.

[6] I am not persuaded that the trial judge failed to consider the body of evidence the appellant refers to, nor am I persuaded that the trial judge failed to give proper effect to that body of evidence. In my view, the appellant’s real quarrel in this case is that he disagrees with the inferences drawn by the trial judge from the evidence in question. Those inferences were reasonable ones and entirely open to the trial judge. For reasons which will be set out in further detail, I would not interfere with the conviction registered by the trial court and would dismiss the appeal.

Facts

[7] The appellant at the time of trial was a 45 year old high tech systems engineer. He was in the midst of a separation from his wife. He is the father of two children. He and his wife had agreed that he would not drink in front of the children. He had recently injured his shoulder and still experienced pain and limited mobility.

[8] The appellant testified that he consumed two tall cans of Budweiser beer between 3:00 p.m. and 5:30 p.m. He then drove to a nearby Pizza Pizza. His movements in the pizza store were captured by cameras. The trial judge was not satisfied that the camera footage displayed a significant degree of impairment.

[9] The trial judge was not satisfied that the evidence of the three people who either observed or interacted with the appellant in the Pizza Pizza restaurant established that the appellant’s ability to operate a motor vehicle would have been impaired during that time frame.

[10] Two patrons of the restaurant, Diana Milonas and Anna Buda, a mother and daughter, were concerned by what they regarded as signs of impairment. They called the police to report the appellant as a possible impaired driver after observing him in the restaurant. They also observed him drive through a stop sign without stopping. An employee of the restaurant testified that he did not think the appellant was impaired, and could not detect an odour of alcohol emanating from his person. The odour of alcohol was also not detected by Ms. Milonas or Ms. Buda, although the evidence indicated that they were not close enough to detect an odour of alcohol.

[11] The appellant left Pizza Pizza, drove home and arrived two minutes later at about 8:19 p.m. He testified at trial that he parked his vehicle in the driveway outside of the garage beside his wife’s vehicle, exited his vehicle, opened a cardboard carton of boxed white wine, drank approximately one litre of wine directly from the carton in the span of ten to twelve minutes in the garage, and got back into his vehicle in the driver’s seat in order to organize electronics and paperwork in the vehicle. His evidence on this point was not accepted by the trial judge.

[12] In response to the call from Ms. Milonas and Ms. Buda, Constable John Webster attended the appellant’s address at approximately 8:45 p.m. after mistakenly attending the wrong address beforehand. Constable Webster first attended the appellant’s front door and spoke to the Appellant’s wife. Constable Webster than approached the Appellant’s vehicle which was parked in the driveway outside of the garage. The door to the garage was open. The appellant was seated in the driver’s seat. As he noticed Constable Webster approaching, he exited the vehicle and Constable Webster confronted him about the reported impaired driving. In his testimony at trial, the appellant admitted that he had been “highly under the influence” of alcohol by the time that Constable Webster confronted him. Constable Webster observed that the appellant exhibited numerous signs of impairment, including an odour of alcohol on his breath, slow and deliberate speech, balance and mobility problems, slow reflexes, and heavy droopy eyes. The appellant said he had consumed two tall cans of Budweiser beer earlier in the day. He testified that he lied to Constable Webster by failing to mention that he had consumed wine in the garage.

[13] Constable Webster suspected the appellant had alcohol in his body and demanded that he provide a sample of his breath into an Approved Screening Device. (ASD). The appellant failed the ASD. The appellant was arrested and a demand made that he provide samples of his breath into an approved instrument.

[14] Constable Webster checked the appellant’s vehicle and noticed that there were electronics and paper in the vehicle. He heard the appellant say that he was concerned about getting work related electronics out of the vehicle. Constable Webster did not notice any alcohol in the vehicle. Constable Mark Boulerice attended the scene and searched the vehicle, but found no alcohol.

[15] The appellant was taken to the police station where he provided a breath sample into an approved instrument. Prior to providing the samples, the approved instrument registered an ambient fail at 10:11 p.m. which happens when the machine detects alcohol in the air in the breath room while performing air blanks to purge the sample chamber. After the breath technician corrected this issue, the appellant provided two breath samples and produced readings of 188 mg of alcohol in 100 millilitres of blood at 10:19 p.m. and 186 mg of alcohol in 100 millilitres of blood at 10:43 p.m.

[16] A forensic toxicologist provided two letters of opinion. He concluded that the appellant’s blood alcohol content would have been between 180 and 225 mg of alcohol in 100 millilitres of blood from the time the appellant was at Pizza Pizza until he drove home.

[17] At trial, the Crown argued that the offences covered two time periods, both when the appellant operated his motor vehicle and drove home from the Pizza Pizza and when the appellant was in care and control of his motor vehicle while seated in the driver’s seat of his vehicle in the driveway. The trial judge found the appellant not guilty of operating his motor vehicle while impaired or while “over 80” when driving home from Pizza Pizza, but guilty of having care and control of his motor vehicle while “over 80” when sitting in the driver’s seat of his vehicle in his driveway.

[18] The appellant does not take issue with the trial judge’s rejection of the appellant’s testimony at trial regarding whether he left his car to drink a litre of wine in 10 to 12 minutes before police arrived. However, the appellant argues that there was a separate body of evidence which favoured the proposition that the appellant left his car and drank wine in the garage which the trial judge was duty bound to consider and which he failed to properly consider. Some of the issues referred to by the appellant are not evidence per se, but legal propositions, but I have listed them all below. The so called “misapprehended evidence” includes the following:

1. People do not consume large quantities of alcohol before driving. This is a common sense proposition which is expressed in case law relating to bolus drinking.
2. The smell of alcohol was not detected at Pizza Pizza either by the server or the two women who called police to report a potential impaired driver. When police interacted with him at 8:45 p.m, he smelled of alcohol, therefore this fact suggests that the alcohol was consumed in the garage, and not before he drove to Pizza Pizza.
3. Symptoms of impairment developed after Pizza Pizza. The trial judge found no significant impairment of the Appellant in the Pizza Pizza restaurant. This supports the inference that the drinking occurred after the trip to Pizza Pizza.
4. The appellant admitted to being impaired in his driveway.
5. Case law tells us that people do not consume large quantities of alcohol while driving. It makes no sense that the appellant would be drinking large quantities of alcohol while driving.
6. There were no containers of alcohol found in the car, so the appellant must have gotten out of the car. He did testify and there is a reasonable doubt component to what he said.
7. His evidence was that he did drink a large quantity of alcohol when he returned home from Pizza Pizza. There was an ambient failure in the breath room due to the machine registering the presence of alcohol from his presence in its vicinity. This suggests that it is more likely that the drinking occurred in the driveway, and not at some earlier point in time. This is especially true since no one observed the odour of alcohol from the Appellant prior to the police interacting with him in his driveway.
8. There was paperwork and electronics in the vehicle. The appellant had testified that he had re-entered the vehicle to retrieve the paperwork and the electronics
9. The garage door was open, which supported the inference that he had exited the vehicle and entered the garage to consume the wine. The wine was consumed within 10 to 12 minutes in a chair in the garage.

[19] I note at the outset that the trial judge indicated that his back and forth with counsel in submissions should be considered as part of his reasons for judgment. At page 46 of the closing submissions, trial counsel pointed out that there are “some objective facts that are corroborated through other witnesses. What do we hear from Constable Webster? He confirms that the garage door was open.” The trial judge responded that he understood that counsel was pointing out that there are parts of the appellant’s evidence supported in logic and reason and his explanation, and were part of why the court should accept his evidence.

[20] In my view, it is clear that the trial judge understood that counsel was urging him to find that the independent body of evidence corroborated the evidence of the appellant. At page 47, counsel noted that Constable Webster also confirmed that there were electronics and paper in the car. Counsel indicated that this allowed for the inference that this is why the appellant was in the car to clean it out as he said. Counsel then submitted, “When you couple that with the garage door being open, that’s now some independent objective proof that’s capable of corroborating him in what they used to say, in a material of particular. But in addition to that we—hear from Constable Boulerice that there were work related electronics which he actually did have to take out of the car. So that should lend some support to what Mr. Champagne is testifying to.”

[21] At page 50 of the closing submissions, the trial judge states: “Okay. I understand but—but you’re, but I understand your point which is he got out, he came back and the fact that his car, it needs to be cleaned out. There’s electronics in there. The car’s messy, that supports his—his evidence about what he was doing in the car and it’s supporting his evidence on a material particular. I understand if that is the point you are making.” Defence counsel responds in the affirmative and then goes on to make the point that in dealing with three people at the Pizza Pizza none of them reported detecting an odour of alcohol, which was later detected by the police at 8:45 p.m. and thereafter. Defence counsel points out that this is indicative of drinking at a later point in time, consistent with the defence theory of events.

[22] In my view, it is clear from these exchanges that the trial judge was very alive to the independent body of evidence alluded to by the defence. It is clear that the trial judge understood that the defence was submitting that this body of evidence was potentially corroborative of the evidence of the appellant. It is apparent from his commentary that he considered this evidence.

[23] It was open to the trial judge, having rejected the evidence of the appellant, to find that the independent evidence did not satisfy him to the requisite degree that the appellant left the car.

[24] The appellant argues that it is clear from the approach that the trial judge took that he did not consider what the appellant characterizes as independent evidence, apart from the testimony of the appellant, which was rejected, which supported the inference that he exited the vehicle, drank a litre of wine in the garage within 10 to 12 minutes, and returned to sit in his vehicle where police located him.

[25] Despite the very thorough submissions of counsel, I do not agree with this submission partly because of the above referenced exchanges with counsel, but also because it is clear in my view that the trial judge considered the evidence as potentially corroborating the evidence of the appellant, but having rejected the appellant’s evidence, he found that the evidence of corroboration, on its own did not satisfy him to the requisite degree.

[26] Also, the common sense proposition relating to bolus drinking arises from the case law. The very experienced trial judge would have been well aware of this proposition. The fact that he did not mention it in this case, does not mean that he did not consider this proposition. The same line of reasoning would apply to the suggestion that the trial judge failed to consider that people do not normally drink large amounts of alcohol while driving.

[27] The trial judge indicated in his reasons for judgment that it would be instructive to read the judgment in conjunction with his interchanges with counsel during both sets of arguments, both after the viva voce argument, and then after the additional questions and answers by the defence toxicologist were filed as an exhibit in the trial, and when the main body of argument ensued.

[28] In his reasons for judgment, the trial judge at paragraph 34, discusses the fact that the appellant said that he got out of his vehicle in the driveway where he parked it and went into the garage. He also discusses the fact that the appellant said that he drank in the garage on a chair. The trial judge references the fact that in Exhibit 4, the appellant’s house has a dark coloured garage door where he parked on the right side and said that he went into the garage. From this portion of the trial judge’s reasons, it is clear that he turned his mind to the fact that the garage door was open.

[29] I do not agree with the appellant’s submission that an open garage door gives rise to a necessary inference that the appellant left his vehicle to enter the garage and drink a litre of wine within 10 to 12 minutes. The trial judge may have found that the garage door may have simply been left open. It seems to me that this was an alternate, reasonable inference available to the trial judge on this evidence. Given that the trial judge found the appellant to not be a credible witness, the open garage door on its own, may not have given rise to the inference which is now suggested by the appellant. In my view, this was a reasonable finding by the trial judge. Given his specific reference to the evidence of the appellant in regard to entering the garage, evidence which the trial judge rejected, it cannot be said that he did not turn his mind to the fact that an open garage door may support the version of events preferred by the appellant.

[30] The notable signs of impairment which were observed later by police back at the appellant’s home are addressed by the trial judge at paragraph 77 of his judgment. At paragraph 56 of his judgment, the trial judge notes that most if not all of the external signs and symptoms of impairment that were observed by the mother and daughter at the Pizza Pizza were either explained to the court’s satisfaction by the appellant, were not observed by the court on the video, or were for the most part refuted by the evidence of the employee. The trial judge noted that he was not able to conclude beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was impaired beyond a slight degree while he drove from Pizza Pizza to his house. These two separate portions of the judgment demonstrate that the trial judge clearly turned his mind to the fact that the signs of impairment during the Pizza Pizza episode were significantly less pronounced than the signs of impairment demonstrated back at the house.

[31] Given that the trial judge specifically referred to the level of impairment at Pizza Pizza, and the level of impairment at the appellant’s house, it is clear that he turned his mind to this issue. In my view, the defence has a quarrel with the inference which he drew from the different levels in impairment at the Pizza Pizza versus in his driveway. With respect, it was open to the trial judge to find that he was not persuaded that the lack of signs of impairment at the Pizza Pizza established that the drinking must have occurred in the driveway. In my view, it was open to the trial judge, on the whole of the evidence, to decline to draw the inference suggested by the defence, especially since the trial judge found the appellant to not be a credible witness.

[32] The appellant argues that the fact that the appellant admitted to being impaired in the driveway should have been considered by the trial judge as evidence that the appellant consumed the bulk of the alcohol at his home, after he arrived from Pizza Pizza. The trial judge referred to this admission by the appellant at paragraph 39 of his judgment. The trial judge noted that the appellant characterized himself as highly under the influence of alcohol. The trial judge noted that the appellant testified that he made the deliberate decision in talking to police to lie about the wine. He also said that due to his condition from the alcohol, he absolutely would not have driven his motor vehicle.

[33] This above passage reveals that the trial judge clearly turned his mind to the admission of the appellant that he was impaired in his driveway. Again, my view of this is that the appellant has a quarrel with the choice by the trial judge to refuse to draw the inference which the appellant feels should be drawn in these circumstances, that is that the bulk of the drinking occurred in the driveway. In my view, it cannot be said that the trial judge did not turn his mind to this issue. Further, it cannot be said that his refusal to accept the inference suggested by the appellant is an unreasonable one. It was open to the trial judge to find that he was not persuaded by the admission of the appellant that he was impaired in his driveway as evidence that the bulk of the drinking had occurred in the driveway after the Pizza Pizza incident.

[34] At paragraph 37 of the judgment the trial judge refers to the appellant’s testimony that he got back in his car and started tidying up his car. The trial judge specifically mentions that he had electronics and papers there from work that he needed to take out of the car and organize. He also noted that he had the extra piece of pizza that he bought that he was consuming in the car.

[35] In my view, the trial judge clearly turned his mind to the fact that there were electronics and paper in the car and that the appellant had testified that he needed to take them out of the car to organize them. It is not that the trial judge failed to turn his mind to these pieces of evidence, as he clearly refers to them in his judgment. However, the trial judge does not explain why he did not find that, having rejected the evidence of the appellant that he got out of the car, the presence of the electronics and papers, in combination with the other evidence independent of the appellant’s testimony, did not give rise to an inference that the appellant had gotten out of his car and had only returned to the car to tidy it. In my view, it is clear from the evidence read as a whole, that the trial judge found the evidence independent of the testimony of the appellant to be potentially corroborating evidence. However, having rejected the testimony of the appellant, it is clear from the reasons of the trial judge that the remaining evidence was considered by him and was insufficient to persuade him that the appellant had left the parked car to do the drinking, once the testimony of the appellant was rejected.

[36] The appellant also does not agree with the fact that the trial judge did not find the electronics and papers in the car gave rise to an inference, independent of the testimony of the appellant, that the appellant got out of the car and had only returned to tidy the car. However, again, this was an inference open to the trial judge, and was a reasonable one on the evidence.

[37] Finally, the trial judge does not specifically refer to the fact that no containers of alcohol were found in the car in his judgment. The trial judge is not required to specifically refer to every piece of evidence in a trial. The lack of an alcohol container in the car could provide an inference that the appellant was not drinking in the car, but it does not follow that the only other available inference is that the lack of a container in the car means that the appellant was drinking in the garage. There other available reasonable inferences, including the fact that the appellant may have been doing his drinking somewhere else entirely prior to his attendance at Pizza Pizza. While there was ambient failure in the breath room, and an absence of an odour of alcohol at the Pizza Pizza, in my view, it was open to the trial judge, notwithstanding that evidence, to conclude that he was not persuaded that the appellant had gotten out of his car to do his drinking in the garage in the minutes before police arrived. I cannot say that this conclusion was unreasonable, or not open to the trial judge.

[38] In his factum, the appellant argues that there was no evidence that the Appellant remained in his vehicle. I do not agree with this submission. The fact that the police found him in his vehicle is some evidence that he remained in his vehicle. It was open to the trial judge to make this finding.

Legal Analysis

[39] Pursuant to section 686(1) of the Criminal Code, a Court of Appeal may allow the appeal against conviction only where the decision is:

a) Unreasonable or cannot be supported by the evidence; b) On the ground of a wrong decision on a question of law; or c) On any ground where there was a miscarriage of justice.

[40] A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence which goes to the substance rather than to detail; is material rather than peripheral to the reasoning of the trial judge; and plays an essential part, not just in the narrative of the judgment, but “in the reasoning process resulting in a conviction.” R. v. Lohrer, 2004 SCC 80, 3 S.C.R. 732 at para 4.

[41] In order to succeed in a claim of misapprehension of evidence, it must be demonstrated not only that evidence was misapprehended, but also that there is a link between the misapprehension and the result at trial. R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250 at para 71.

[42] For the reasons outlined above, I did not find that the trial judge failed to consider evidence relevant to a material issue. In my view, the appellant is disputing the inferences drawn from the various pieces of evidence considered by the trial judge in what were thorough reasons. This is not tantamount to a misapprehension of evidence. R. v. Morin, [1992] 3 S.C.R. 286 at para 16, 18 and 22.

[43] The Crown in this case points out that even where a trial judge failed to consider all of the evidence, the claim can only succeed if the failure to allude to evidence demonstrates that the trial was unfair and the verdict was not a true verdict. R. v. C.B., 2017 ONCA 862 at para 46.

[44] In that case, the appellant had provided an explanation of his conduct, and nowhere in the trial judge’s reasons did the trial judge refer to that explanation. The conviction was upheld.

[45] I have found that the trial judge in this case, did not fail to consider all of the evidence. However, even if it could be said that this was the case, the appellant in this case cannot be said to have received an unfair trial. The trial judge rejected the evidence of the appellant as being not credible. The remaining independent evidence referred to by the appellant, in my view, is not capable of supporting only the inferences suggested by the appellant. It was open to the trial judge to find that the supporting evidence apart from the testimony of the appellant did not satisfy him, after he rejected the testimony of the appellant. Once the trial judge rejected the testimony of the appellant, the fact that a garage door was open, or that no alcohol containers were found in the car, or that paper and electronics were found in the car, or that the signs of impairment were very strong at the police station, but not at the Pizza Pizza, and all of the individual pieces of evidence referred to by the appellant are capable of giving rise to more than one inference. Having rejected the evidence of the appellant as not being credible, for lying about his alcohol consumption to police, and for lying about going through the stop sign in his evidence, it was open to the trial judge to find that these “independent” pieces of evidence did not satisfy him that the appellant got out of his car.

The Standard of Review

[46] In the case before me, the sufficiency of the evidence to convince a trier of fact on a balance of probability, to rebut the presumption of care and control is a question of fact. R. v. Boudreault, 2012 SCC 56, 3 S.C.R. 157 at para 111. The trial judge’s conclusions on the facts does not give rise to a question of law alone. Boudreault, supra at para 15.

[47] The question before me is whether the trial judge heard evidence which was reasonably capable of supporting his or her conclusion concerning the guilt of the accused. In my opinion, there was evidence supporting the finding of the trial judge.

[48] Further, I do not agree that the trial judge failed to consider all of the evidence. Trial judges are not required to discuss all of the evidence on any given point.

[49] I am of the view that there was no misapprehension of the evidence in this case. The appellant admitted that he was impaired by alcohol at the time police found him in the driver’s seat of his motor vehicle. There was agreement at trial that he was in the driver’s seat of his motor vehicle when the police arrived at his residence. The parties agreed that if the appellant proved on a balance of probability he left his motor vehicle upon returning to his residence and then re-entered it, the presumption would be rebutted.

[50] The trial judge found that the appellant had not rebutted the presumption of care and control. It was open to the trial judge to make this finding. The appellant took no issue with the trial judge rejecting the evidence of the appellant in this regard. The appellant argues that the remaining independent evidence was not properly considered by the trial judge in arriving at the finding that the appellant had not rebutted the presumption of care and control. It is clear from the exchanges highlighted in the submissions of counsel that the trial judge considered the independent evidence. It is clear that having rejected the testimony of the appellant, the trial judge found that the corroborative evidence did not satisfy him that the appellant had left the car in the driveway to drink in the garage prior to the arrival of police. This finding was a perfectly reasonable conclusion for the trial judge to make. For all of the reasons discussed, I am of the view that this appeal must be dismissed.

A.E. London-Weinstein J. Released: February 7, 2019