COURT FILE NO.: CR-18-156-00AP DATE: 20200224
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
VARUN SARDANA Alan Pearse, for the Appellant Appellant
- and -
HER MAJESTY THE QUEEN Arish Khoorshed, for the Respondent Respondent
HEARD: June 26, 2019
REASONS FOR JUDGMENT [On appeal from the judgment of the Honourable R. LeDressay, dated September 27, 2018]
COROZA J.
A. Overview
[1] The Appellant, Varun Sardana, appeals his conviction of having operated a motor vehicle while his ability to do so was impaired. He seeks an order allowing the appeal, quashing the conviction and entering an acquittal. Sardana argues that the trial judge erred in finding that the Crown had proven that Sardana was impaired by alcohol when he was driving his car.
B. Factual Background
[2] On May 1, 2017, a police officer saw Sardana driving a car that made a wide left turn onto Lakeshore Road in Oakville. This car almost struck a curb on the right-hand side and then appeared to cross the centre median of Lakeshore Road.
[3] The officer followed the car. During this time, the officer saw the car moving erratically. The car continued to cross over the centre median and then weave to the right side of the roadway.
[4] Sardana, who was the driver of that car, was eventually pulled over. Once he was pulled over, the officer testified that Sardana’s eyes were glossy, watery, and red; an odour of alcohol was coming from his breath; his speech was slurred; and he was unsteady on his feet. As a result, Sardana was arrested for impaired driving.
C. Sardana's Argument at Trial
[5] The trial was focused and consisted of three Crown witnesses. A breath room video was also admitted into evidence. At trial, Sardana argued that his Charter rights had been violated and the Crown had not proven his guilt beyond a reasonable doubt. He relied heavily on the evidence of the police officers at the station that Sardana was not exhibiting signs of impairment.
D. The Trial Judge's Reasons
[6] In very careful and thorough reasons, the trial judge dismissed Sardana’s application to exclude evidence and he found the evidence of the arresting officer who observed Sardana's driving and his demeanour at the scene to be reliable and credible. He also acknowledged that any police officer who dealt with Sardana at the police station did not notice him to exhibit signs of impairment. The trial judge noted the following:
- The qualified technician agreed that Sardana did not have a problem with his movement in the breath room and that he had no problems walking in and out of the breath room;
- The police officer who was in charge of the police station that evening when Sardana arrived for booking testified that "there was nothing that was overly over the top" about his demeanour at the station that would suggest impairment.
[7] Nevertheless, the trial judge concluded that the fact that Sardana was not exhibiting any observable indicia of impairment when he was at the police station did not impact on the credibility and reliability of the observations of the police officer at the scene because those observations were made in entirely different circumstances. At paragraphs 167 to 184, the trial judge addressed Sardana's argument that in light of the objective evidence that Sardana did not display any indicia of impairment at the police station, the Crown could not prove its case beyond a reasonable doubt. The trial judge rejected this argument and held:
Therefore, notwithstanding that the defendant was not exhibiting any observable signs of impairment at the police station, I find he was exhibiting very observable and obvious signs of impairment at the time he was operating his motor vehicle and when he was arrested.
[8] The trial judge went on to cite the decision of Durno J. in R. v. Grant, 2014 ONSC 1479, for the proposition that observable indicia of impairment are not static and he noted that the observations of the police officers at the station came some time after those of the officer at the scene.
E. The Ground of Appeal
[9] Counsel for Sardana renews his argument made at trial. In summary, the position of counsel is that the observations of the police officer who stopped Sardana and those of the officers who dealt with him at the police station cannot be reconciled. Therefore, he argues that the Crown could not prove beyond a reasonable doubt that Sardana was guilty of impaired operation of a motor vehicle. In other words, Sardana contends that the trial judge's conclusion is unreasonable.
F. Analysis
[10] An appellate court reviewing a trial judge's reasons to determine the reasonableness of the decision must always keep the following in mind.
[11] First, it is not the function of a court on appeal to microscopically analyze each item introduced into evidence and determine if the Crown would have met the onus.
[12] Second, the function of this appellate court is not to re-try cases.
[13] In my view, there was sufficient evidence for the trial judge to reach the conclusion he did. His finding was not unreasonable. His Honour listed the following pieces of evidence that collectively, and with weight being given to their cumulative effect, pointed to the fact that Sardana was impaired when he was driving the car:
- The driving conduct noted by the officer on Lakeshore Road;
- An odour of alcohol emanating from Sardana's breath at the scene;
- The manner in which Sardana stopped his car when he was pulled over;
- The observation of red, glossy, and watery eyes;
- The dazed demeanour of Sardana at the scene; and
- The observation that Sardana was unsteady at the scene.
[14] What the Crown is required to establish beyond a reasonable doubt in an impaired driving prosecution is any degree of impairment from slight to great, not extreme intoxication: see R. v. Stellato (1993), 12 O.R. (3d) 90 (S.C.C.). In my view, his Honour had overwhelming evidence upon which to reasonably find that Sardana's ability to operate a motor vehicle was impaired by the consumption of alcohol. While each item viewed individually would not have met the onus, the cumulative effect of all the indicia provided an evidentiary basis upon which the trial judge could reach the conclusion he did. The odour of alcohol confirmed that alcohol had been consumed. Furthermore, there is no evidence that anything external to Sardana could have resulted in the driving that was observed.
[15] Nor am I persuaded that the fact that Sardana did not exhibit signs of impairment at the police station makes the verdict unreasonable. I have reviewed the breath room video as requested by counsel for Sardana. One could argue that Sardana's speech is clear, that he speaks with an accent and that he had no difficulty in discussing issues with the police. Nevertheless, even if it were true that Sardana exhibited no sign of impairment at the station, it cannot be said that the trial judge did not turn his mind to this issue. He did. He found that the breath room video and the observations of the police officers at the station did not detract from the credibility and reliability of the officer who observed Sardana’s driving and his demeanour at the scene.
[16] Again, an appeal court is usually not permitted to reweigh a finding of credibility. I see nothing in the trial judge's reasons or in the record filed by Sardana on this appeal that would suggest that the trial judge made an error in his assessment of this evidence. It was open to the trial judge to find that the video did not affect his acceptance of the officer's evidence at the scene and I find no error in his doing so.
[17] The appeal is dismissed.
Coroza J.
Released: February 24, 2020