Court File and Parties
COURT FILE NO.: CR-19-0034-AP DATE: 2019-12-13 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
REBECCA HAUTA Appellant
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HER MAJESTY THE QUEEN Respondent
COUNSEL: Michael Hargadon, for the Appellant Katrina van Kessel and Andrew Sadler, for the Crown
HEARD: November 1, 2019, at Thunder Bay, Ontario Regional Senior Justice B. R. Warkentin
Reasons for Judgment on Appeal
[1] The Appellant appeals her conviction for refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code. She was convicted on March 27, 2019 when the Appellant invited a conviction after failing to succeed on a Charter Application under sections 9, 10, 24(1) and 24(2). (The charge was laid on February 13, 2018, prior to s. 254 of the Criminal Code being repealed and replaced by sections 320.27 and 320.28 of the Code).
[2] The Appellant now alleges that the reasons of the trial judge were insufficient and seeks an order substituting an acquittal for the conviction or in the alternative an order for a new trial.
The Charter Application
[3] The hearing began on January 23, 2019 in Marathon, Ontario. At the commencement of trial, counsel for the Appellant brought an application for Charter relief alleging a breach of s. 9 on the basis that the detention of the Appellant was arbitrary and therefore the evidence obtained should be excluded. He also argued a breach of s. 10 of the Charter. He proposed that the Crown call its evidence in a voir dire pertaining to the Charter application. He agreed that the evidence should also form part of the evidence at trial.
[4] The Appellant’s argument in her Charter application was that she was pulled over by the police officer for the sole purpose of conducting a roadside sobriety test and not for the Highway Traffic Act infractions that the officer testified to. In support of this position was the record of the officer’s communication with her dispatcher prior to stopping the Appellant’s vehicle in which the officer indicated it was her intention to be doing a roadside test.
[5] The Crown submitted that there was no requirement for a Charter voir dire because the issue before the trial judge was a Highway Traffic Act stop under s. 216. Under that section, it was open to the trial judge to make a finding on whether the demand for a breath sample was made in compliance with s. 254(2) of the Criminal Code.
[6] The trial judge agreed to hear the voir dire and after hearing the evidence determined that the demand for a breath sample had been made in compliance with s. 254(2) of the Code and dismissed the Charter application.
[7] In finding compliance with s. 254(2), the trial judge commented on the variety of Highway Traffic Act infractions that the Appellant had committed prior to being pulled over. He identified these as speeding, turning without signalling and jumping at least one stop sign. The trial judge found that the officer had conducted the traffic stop in accordance with the requirements of s. 254(2) and therefore the demand for a breath sample was lawful. The trial judge then dismissed the Charter application on the basis that the Appellant’s Charter rights were not invoked on a legal traffic stop.
[8] After the voir dire, counsel requested an adjournment of the remainder of the trial for various reasons that are not relevant in this appeal. The trial continued in Thunder Bay on March 27, 2019. At the commencement of that hearing counsel for the Appellant advised the court that he was calling no evidence and invited a finding of guilt. A joint submission on sentence was also made.
The Law
[9] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law;
(iii) on any ground where there was a miscarriage of justice.
[10] Counsel for the Appellant has asked this court to allow the appeal on the basis that the trial judge’s reasons were insufficient. He argued that they were insufficient because the trial judge accepted the testimony of the police officer who conducted the traffic stop as credible without explaining why he found the officer’s evidence was credible.
[11] Where an appellate court reviews findings of credibility by a trial judge, the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. A trial judge is in a unique position to see and hear witnesses. An appellate court should not substitute its own assessment of credibility for that of the trial judge. While trial judges must explain the reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court, the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, [2006] S.C.J. No. 17 (S.C.C.), at paras. 19 and 20, emphasized that appellate review does not entail a word by word analysis.
[12] I do not find the trial judge’s reasons were insufficient as alleged by the Appellant. The trial judge determined that the traffic stop was legal based upon the evidence of the officer who conducted the stop. He accepted that officer’s evidence of the various traffic violations that she observed. Once he made this finding, he agreed with the Crown’s submissions that the Appellant’s Charter rights were not engaged as alleged by the Appellant in the voir dire and dismissed the voir dire. The Appellant then invited a finding of guilt.
[13] I find no basis on which to interfere with the rulings of the trial judge. The appeal is therefore dismissed.
“original signed by” Regional Senior Justice B. R. Warkentin
Released: December 13, 2019
COURT FILE NO.: CR-19-0034-AP DATE: 2019-12-13 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: REBECCA HAUTA Appellant
- and - HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT ON APPEAL Warkentin RSJ.