Court File and Parties

Court File No.: SCA 9573 Date: 2019-12-10 Ontario Superior Court of Justice Summary Conviction Appeal Court

Between:

Her Majesty the Queen Appellant

– and –

Brendon Avery-Quick Respondent

Counsel: H. Mattson, Counsel for the Appellant A. McMaster, Counsel for the Respondent

Heard: September 25, 2019

Before: The Honourable Mr. Justice D.A. Broad

Reasons for Decision

On Appeal from the Decision of January 24, 2019 by Justice W.G. Rabley of the Ontario Court of Justice

[1] Following a trial, the appellant was convicted of the following offences:

(a) Impaired driving contrary to section 253(1)(a) of the Criminal Code of Canada;

(b) Dangerous operation of a motor vehicle contrary to section 249(1)(a) of the Criminal Code; and

(c) Failing to remain at the scene of an accident contrary to section 200(1)(a) of the Highway Traffic Act.

[2] An Agreed Statement of Facts and a Toxicology Report prepared by Elizabeth Hird of the Centre of Forensic Sciences constituted the evidence of the Crown and no other evidence was called by it. The appellant Brendon Avery-Quick testified in his own defence.

[3] The appellant appeals the conviction on the basis that the trial judge misapprehended the evidence of Ms. Hird in the Toxicology Report. He submits that the misapprehension caused the trial judge to reject the appellant’s evidence, which represented the sole reason for the resulting conviction. In his Factum the appellant submits that the appeal should be allowed, and a new trial ordered.

Evidence

[4] The Agreed Statement of Facts established the following:

(a) on the evening of January 26, 2018, the appellant operated a motor vehicle while his ability to operate the vehicle was impaired by a combination of alcohol and prescription drugs;

(b) at 5:45 p.m. the vehicle operated by the appellant collided with a tree causing damage to the tree and to the vehicle. The appellant did not remain at the scene of the collision and continued driving;

(c) when the police attended at the address of the appellant they were directed to the appellant by his roommate. The Investigating Officer asked the appellant if he had consumed any alcohol to which the appellant responded that he had had a “few shots earlier in the night;”

(d) the Officer observed that the appellant’s eyes were glossy, he had a glazed over and straight-ahead stare, he slurred his speech and an odour of alcohol emanated from his breath;

(e) the appellant was placed under arrest for impaired driving at 7:10 p.m. and at 7:33 p.m. provided samples of his breath and the results were 55 mg and 51 mg of alcohol in 100 mL of blood, respectively;

(f) at 8:21 p.m. a drug recognition test was conducted on the appellant and the DRE officer concluded that the appellant was impaired by a combination of alcohol and marijuana; and

(g) the officer made a further demand that the appellant provide a urine sample, and the sample was sent to the Centre of Forensic Sciences. On April 11, 2018, a Toxicology Report was prepared by Elizabeth Hird of the Centre of Forensic Sciences, analysing the urine sample. The following drugs were detected: Amphetamine, Codeine, Hydrocodone, Morphine, Zolpidem and Pregabalin.

[5] The appellant testified to the following:

(a) he had been diagnosed with serious medical issues which have led to him be prescribed a number of medications which he ingests daily;

(b) at seventeen years of age he was diagnosed with depression and later, during university, he was diagnosed with ADHD. He was prescribed a number of drugs including anti-depressants and Adderall to deal with these issues;

(c) he had been prescribed and taken Dexedrin, a drug prescribed for hyperactivity disorder, for five years. For approximately three or four years he had been prescribed Pregabalin for his anxiety. He took these prescription drugs twice a day in capsule form and generally the two drugs were consumed at the same time;

(d) he had not been told by his doctor that he should not drink alcohol with Pregabalin or with Dexedrine. He had not read the fine print in the leaflet in the box, nor had he been directed to it by a doctor prior to the incident;

(e) in September 2017, he was prescribed Zolpidem to help him sleep;

(f) he has not been told by his doctor that he should not drink alcohol with Zolpidem, nor had he read the fine print in the leaflet in the box, nor was the fine print pointed out to him prior to the incident;

(g) at the time of the accident he was also taking an over-the-counter pain medication as he was experiencing back pain;

(h) on previous occasions he might have had this combination of drugs and alcohol in his system with no notable incident occurring;

(i) when he got home at around 4 p.m. on January 26, 2017, he consumed an alcoholic beverage containing two shots of vodka. While watching television he decided that he should take a sleeping pill (one tablet of Zolpidem);

(j) the next thing he remembered was waking up at the police station;

(k) he had no recollection of getting into his car, driving his car or thinking that he was going to get into his car to go someplace. He had been running errands and had returned home and everything was done for the day; and

(l) he stated that he would absolutely never have driven after taking the sleeping pill;

(m) on cross-examination the appellant confirmed that he knew consuming alcohol and consuming Zolpidem could impair his ability to drive a car. He also confirmed that he became impaired by his consumption of alcohol and Zolpidem and that he drove a motor vehicle as a result of voluntary, self-induced impairment.

Trial Judge’s Findings

[6] Trial judge found the following:

(a) the urine sample given by the appellant at the police station disclosed the presence of codeine, hydrocodone and morphine in his body;

(b) the appellant’s description of the pain medication for his back as “over-the-counter” is not accurate or truthful as powerful drugs such as morphine would not be found in an over-the-counter pain medication;

(c) the appellant would not forget or confuse the other narcotics or prescription medications that were in his body with over-the-counter pain medications. As a result, he made a positive finding that he did not believe the appellant and his evidence did not leave him in a reasonable doubt;

(d) the defence suggestion that the sleeping pill or a combination of the medications and the alcohol caused the appellant to drive while he was sleeping is not based on fact, but on speculation;

(e) there is no evidence that the sleeping pill had any impact on the appellant’s driving on the evening in question;

(f) the only evidence about the effect of the cocktail of drugs upon the appellant was his own evidence that he had consumed a sleeping pill and alcohol before resulting in no unusual consequences;

(g) the addition of codeine, hydrocodone and morphine to the mix was much different, as evidenced by the appellant’s behaviour on the evening in question;

(h) although he accepted that one or more of the prescription drugs mixed with the alcohol caused the extreme intoxication, the rebuttable presumption of voluntariness must be met by evidence that creates a reasonable doubt rather than speculation. There was no such evidence as he did not believe the appellant;

(i) moreover, the fact that the appellant voluntarily consumed alcohol and then operated a motor vehicle makes him guilty of the offence since he had not rebutted the presumption of voluntary intoxication; and

(j) alcohol was a contributing factor in the appellant’s erratic driving, although his impairment was as a result of a combination of both alcohol and prescription drugs.

Position of the Appellant

[7] The appellant advances the following ground of appeal:

(a) The trial judge misapprehended the evidence which led him to reject the appellant’s evidence and to find him guilty of the offences charged. Specifically, the trial judge erred in his review of the toxicology report of Elizabeth Hird of the Centre of Forensic Sciences and, in particular paragraphs 4 and 5, which stated that both hydrocodone and morphine can be a metabolite of codeine, which is a drug taken for the treatment of mild to moderate pain.

[8] The appellant submits that the misapprehension of the evidence by the trial judge, was material to his reasoning and constituted an essential part of the reasoning process that resulted in his conviction. He argues in reliance on R. v. Lohrer, 2004 SCC 80 at paragraph 1, citing R. v. Morrissey (1995), 1995 ONCA 3498, 97 C.C.C. (3d) 193 (Ont. C.A.), that the conviction was not based exclusively on the evidence due to the trial judge’s misapprehension and was therefore not a “true” verdict.

Position of the Crown

[9] The Crown submits that the trial judge did not misapprehend any evidence and made no palpable or overriding error in rejecting the appellant’s testimony. It was open to the trial judge to conclude, based upon the evidence before him, that the appellant had consumed hydrocodone and/or morphine and thereby find that he was not credible.

[10] In the alternative, the Crown submits that, even if the trial judge erred in assessing the appellant’s evidence, the rejection of his evidence was not an essential part of the reasoning process which resulted in the conviction. The trial judge would necessarily have convicted the appellant regardless of whether he believed the appellant’s evidence. The Crown says that, when the reasons of the trial judge are read in their entirety, it is apparent that the trial judge’s reasons for conviction went beyond merely disbelieving the appellant. The additional bases upon which the conviction rests may be summarized as follows:

(a) the appellant could not displace the presumption that he consumed the alcohol/drug voluntarily because of his lack of memory;

(b) the appellant could not raise a defence of sleep-driving because this defence was speculative and lacked the necessary expert evidence; and

(c) the appellant voluntarily consumed alcohol, and the alcohol was at least a contributing factor in his impairment.

The Crown therefore submits that there is no basis to order a new trial.

Guiding Principles

[11] It is well accepted that an appellate court must not overturn any findings of fact of the trial court, including inferences of fact and findings respecting the credibility of witnesses, unless it is found that the trial judge has made a palpable and overriding error, or the findings were clearly wrong, unreasonable, or not reasonably supported by the evidence, or relevant evidence was disregarded, and that such findings affected the outcome of the case (see the seminal Supreme Court of Canada cases Housen v. Nikolaisen, 2002 SCC 33 and L.(H.) v. Canada (Attorney General), 2005 SCC 25).

[12] On an appeal grounded upon an alleged misapprehension of evidence by the trial judge, an appellant must establish that the misapprehension has deprived the appellant of entitlement to a fair trial according to law resulting in a miscarriage of justice. This requirement is a stringent one.

[13] Binnie, J. in R. v. Lohrer, 2004 SCC 80 laid out the requirements for an appeal to succeed based upon a misapprehension of evidence as follows at paragraph 4:

(a) the misapprehension of the evidence must go to the substance rather than to the detail;

(b) the misapprehension must be material rather than peripheral to the reasoning of the trial judge; and

(c) the identified errors must play an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in a conviction.

[14] Lebel, J. elaborated in R. v. Sinclair, 2011 SCC 40, [2011] S.C.J. No. 40 at para. 56 that “an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground.”

[15] At paragraph 53 of Sinclair, Lebel, J. observed that in order for an appeal to succeed the plain language or the thrust of the reasons must disclose an actual mistake.

Discussion

[16] The appellant points to what he would characterize as the penultimate finding of the trial judge which led to his conviction at paragraph 43 of the Reasons, as follows:

“I simply do not believe that [Mr. Avery-Quick] would forget or confuse the other powerful narcotics or prescription medications that were in his body with over-the-counter pain medications. As a result, I would make a positive finding that I do not believe Mr. Avery-Quick and his evidence does not leave me in a reasonable doubt.”

[17] The Toxicology Report, which formed part of the Agreed Statement of Facts, disclosed the detection of, among other drugs, codeine, hydrocodone and morphine in the urine sample taken from the appellant. The trial judge specifically noted at paragraph 38 of his Reasons that the appellant was asked in his examination-in-chief whether there were any other prescription drugs that he was taking to which he responded “at the time it wasn’t a prescription medication but I had taken some over-the-counter pain medication for my back.”

[18] At paragraph 42 the trial judge stated:

“I find that Mr. Avery-Quick’s description of the pain medications as “over-the-counter” for his back is not accurate or truthful. Powerful drugs such as morphine would not be found in an over-the-counter pain medication. I also find that this is something that he would not have innocently forgotten or confused.”

[19] The appellant submits that the trial judge misapprehended the evidence by overlooking paragraphs 4 and 5 of the Toxicology Report. Paragraph 4 stated, inter alia, that in “hydrocodone can also arise as a urinary metabolite of codeine” and paragraph 5 stated, inter alia, “morphine can also arise as a metabolite of codeine or heroin.”

[20] The linchpin of the appellant’s position that the trial judge misapprehended the evidence, and in particular, that he misapprehended the significance of paragraphs 4 and 5 of the Toxicology Report, was his suggestion in oral submissions that the trial judge erred in failing to take judicial notice that codeine is available, without prescription, in over-the-counter pain medications. Had he taken judicial notice of that fact, paragraphs 4 and 5 of the Toxicology Report would have supplied sufficient explanation for the detection of hydrocodone and morphine in his urine such that the adverse finding of credibility would not have been made. The appellant points out that he never described the over-the-counter pain medication he took, nor was he asked this by the Crown or the court. As a result, he submits that there is no evidentiary foundation for the trial judge to come to the conclusion that he did respecting his credibility.

[21] It is noted that the appellant did not invite the trial judge in submissions to take judicial notice that codeine is available in over-the-counter pain medications.

[22] Justice Watt in Watt’s Manual of Criminal Evidence, citing R. v. Spence, [2005] 3. S.C.R. 458 (S.C.C.), noted as follows:

The permissible scope of judicial notice varies according to the issue under consideration. The closer a fact approaches the dispositive issue, the more a court should insist on compliance with the stricter criteria for judicial recognition.

A court may take judicial notice of facts that are either

i. so notorious or generally accepted as not to be the subject of debate among reasonable persons; or

ii. capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[23] Even assuming the fact that some over-the-counter pain medications may contain codeine is “so notorious or generally accepted as not to be the subject of debate among reasonable persons” and therefore the trial judge could have taken judicial notice of it, this does not resolve the issue. There was still no evidence before the court from the appellant or any other source that the particular over-the-counter pain medication ingested by him was of the type that contained codeine. There is no basis for taking judicial notice that all over-the-counter pain medications contain codeine.

[24] On the basis that the trial judge should have taken judicial notice that some over-the-counter pain medications may contain codeine, he had before him the following evidence:

(a) codeine, hydrocodone and morphine were detected in the appellant’s urine sample;

(b) codeine is a drug prescribed for the treatment of mild to moderate pain;

(c) hydrocodone is a drug prescribed for the treatment of mild to moderate pain and the suppression of coughs;

(d) morphine is a prescription drug used to treat moderate to severe pain;

(e) hydrocodone and morphine can each arise as a metabolite of codeine;

(f) the appellant ingested an over-the-counter pain medication; and

(g) some over-the-counter pain medications may contain codeine.

[25] I am unable to conclude that the trial judge, on the evidence before him, made a palpable and overriding error in effectively rejecting the appellant’s evidence that he did not ingest prescribed codeine, hydrocodone and morphine, or that the finding was clearly wrong, unreasonable, or was not reasonably supported by the evidence, or that relevant evidence was disregarded.

[26] I am not persuaded that comments made by the trial judge in an exchange with counsel in the course of the Crown’s closing submissions, to the effect that there was no reason for him not to accept the appellant’s evidence, assists the appellant.

[27] It is not unusual for trial judges to engage in an exchange of ideas, concepts and observations respecting the evidence and the law during submissions of counsel. Following the final completion of submissions, the trial judge’s task is to examine all of the evidence and to make necessary findings and draw necessary inferences of fact and to apply the law to those facts and inferences. A trial judge is not required to ensure that his or her findings and inferences are fully consistent with his or her observations made during submissions. A trial judge is not bound by observations he or she may have made during submissions. A fulsome review of all of the evidence may displace some or all of those earlier observations. Observations and comments, which do not constitute rulings of the court, made by a trial judge during the trial or submissions are not amenable to appellate review.

[28] The issue on appeal is whether the trial judge made a palpable and overriding error by misapprehending the evidence before him. I have found that he did not.

[29] This finding disposes of the sole ground of the appeal. It is therefore not necessary to embark on an analysis of the Crown’s position that, even if the trial judge had misapprehended the evidence on the basis suggested by the appellant, the appellant would nevertheless have been convicted and therefore the findings based on any such misapprehension would not have affected the outcome of the case.

Disposition

[30] The appeal is therefore dismissed.

D.A. Broad J

Date: December 10, 2019

Court File No.: SCA 9573 Date: 2019-12-10

Ontario Superior Court of Justice Summary Conviction Appeal Court

Between:

Her Majesty the Queen

-and-

Brendon Avery-Quick

Reasons for Decision

D.A. Broad J

Released: December 10, 2019