Court File and Parties

Court File No.: CR-19-10000023-00AP Date: 2020-02-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Lanh Phu, Appellant

Counsel: Ms. H. Song, for the Respondent Ms. S. Shikhman, for the Appellant

Heard: February 25, 2020

Justice J. Copeland

Reasons for Judgment on Summary Conviction Appeal

Introduction

[1] The Appellant appeals from conviction for impaired operation of a motor vehicle, and failing to remain at the scene of an accident. The Appellant’s primary argument is that the verdicts are unreasonable. As a secondary argument, the Appellant argues that the trial judge erred in failing to properly apply the W.(D.) analysis, and gave insufficient reasons for her decision.

[2] The trial judge gave detailed and relatively lengthy oral reasons shortly after the completion of the evidence in this case.

(i) Are the verdicts unreasonable?

[3] In considering an appeal based on the argument that a verdict is unreasonable, an appellate court must consider whether the verdict or verdicts are ones that a properly instructed jury, acting judicially, could reasonably have rendered. It is not the role of an appellate court to simply substitute its view for that of the trier of fact. However, an appellate court considering the reasonableness of a verdict is entitled to review and re-examine the evidence, and to engage in a limited weighing of the evidence to consider whether it is reasonably capable of supporting the verdicts: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15 at paras. 36-37. Case law developed under s. 686(1)(a)(i) in relation to unreasonable verdicts is applicable to summary conviction appeals: R. v. Hewitt at para. 3 (ONCA); s. 822(1) of the Criminal Code.

[4] Where unreasonable verdict is raised in relation to credibility findings, an appellate court must bear in mind the primacy of the trial judge’s role in assessing credibility. An appellate court should not intervene in a trial judge’s assessment of credibility unless it is shown that it cannot be supported on any reasonable view of the evidence: R. v. R.P., [2012] 1 S.C.R. 746, 2012 SCC 22.

[5] The same analysis applies to the consideration of the reasonableness of a verdict whether the trial is by jury or by judge alone. However, when a trial is by judge alone, the presence of reasons may permit an appellate court to identify a flaw in the trial judge’s analysis that may explain why an unreasonable conclusion was reached. However, as noted, an appellate court must show deference to a trial judge’s assessment of witness credibility: R. v. W.(R.), [1992] 2 S.C.R. 122 at p. 131; R. v. W.H., [2013] 2 S.C.R. 180, 2013 SCC 22 at paras. 30-32.

[6] The Appellant argues that the explanations that she gave in her evidence at trial for her behaviour (in terms of the nature of the driving, and related issues such as her evidence that she consumed alcohol after the second collision, and the reasons she gave for leaving the scene of the first accident) were capable of raising a reasonable doubt in relation to both counts. In particular, regarding the impaired operation count, the Appellant argues on appeal that each of the various factors that the trial judge relied on in concluding that impairment of the ability to operate a motor vehicle had been proven beyond a reasonable doubt, could be explained by something other than impairment. Similarly, in relation to the fail to remain count, counsel argues that the trial judge failed to consider the Appellant’s explanation for why she left the scene of the first collision.

[7] I have considered the arguments advanced by the Appellant, and reviewed the trial evidence. I find that there is nothing unreasonable about the trial judge’s conclusions. The primary reason I reject the Appellant’s arguments is that I find that the trial judge fairly considered the Appellant’s evidence in the context of the evidence as a whole, and made credibility findings adverse to the Appellant. Those findings were not unreasonable.

[8] The findings of credibility made by the trial judge are entitled to deference. I am not persuaded that in making the credibility findings she made, the trial judge failed to consider relevant evidence. In my view, she considered the whole of the evidence before her, and did not “cherry-pick” the evidence, as the Appellant now asserts. I am not going to go point by point through each area of evidence where the Appellant argues the trial judge did not properly consider the evidence; rather, I will give just a few of examples.

[9] The Appellant argues that the trial judge erred finding that the Appellant’s evidence that she drank alcohol from her boyfriend’s flask after the second collision was not credible on the basis that it defied common sense for the Appellant to drink alcohol knowing that the police were coming, particularly given the Appellant’s evidence that she was already afraid that the police would (wrongly according to the Appellant) think she was drunk. The Appellant argues that the trial judge failed to consider the countervailing evidence that the Appellant stayed and waited for police.

[10] I disagree. The trial judge was clearly alive to the fact that the Appellant stayed and waited for police. And the trial judge fairly noted in her reasons that the Appellant was scared and nervous while waiting for police, and that she was cooperative with the police (Reasons for Judgment, transcript of November 16, 2018, pp. 176-177). However, the trial judge rejected the Appellant’s evidence that she drank alcohol after the second collision because it defied common sense (Reasons for Judgment, transcript of November 16, 2018, pp. 179-180). The trial judge was entitled to make the finding of fact she made about the Appellant’s evidence that she consumed alcohol after the second collision.

[11] The Appellant argues that in relation to the issue of why the Appellant left the scene of the first collision, trial judge failed to consider the Appellant’s evidence that she thought the first collision did not result in any damage, and also that one reason did not stop sooner was because she was panicking and afraid that she was being followed for something unrelated to the collision, and that she had this particular fear because an unrelated incident when she was younger when someone had followed her and tried to grab her off the street.

[12] With respect, I disagree that the trial judge failed to consider this evidence. The trial judge expressly referred to this evidence in the portion of the reasons for judgment where she recounted the Appellant’s evidence, and again in the portion of her reasons where she rejected the Appellant’s evidence about the reasons that she did not stop (Reasons for Judgment, transcript of November 16, 2018, pp. 174-175, and pp. 180-183).

[13] The Appellant argues that the trial judge failed to critically assess the reliability of the evidence of the civilian witness who testified that after the second collision, he overheard the Appellant speaking on the phone with someone, and saying that she was drunk, she had hit someone, and it was her fault.

[14] Again, I disagree. The trial judge’s reasons are clear that she did consider the defence position that the civilian witness may have been mistaken in what he heard, and the Appellant’s evidence that what she had said on the phone was that she was afraid people would think she was drunk (Reasons for Judgment, transcript of November 18, 2018, pp. 178-179). Thus, the trial judge clearly did consider the reliability of the evidence of the civilian witness.

[15] I note as well that it is well-established that a trial judge is not required to refer to every piece of contested evidence in her reasons for judgment.

[16] Further, and this is specifically in relation to the impaired operation count, the Appellant’s argument amounts to a claim that various of the factors the trial judge relied on in concluding that impairment of the ability to operate a motor vehicle had been proven beyond a reasonable doubt, could be explained by something other than impairment. In my view the flaw in this argument by the Appellant is that it urges this court to look at the potential indicia of impairment piecemeal. The law is clear that trial judges must consider the evidence as a whole. This is particularly important in relation to circumstantial evidence, which is typically (and in this case) significantly relied on by the Crown to prove impairment of the ability to operate a motor vehicle. A trial judge must consider all of the evidence bearing on impairment of the ability to operate a motor vehicle, including possible other explanations, and including exculpatory evidence. I find that the trial judge in this case did exactly that.

[17] I find that the conclusions reached by the trial judge were reasonable. Finding that both charges were proven beyond a reasonable doubt were verdicts that a reasonable jury, properly instructed, could have reached. In my view, the substance of the Appellant’s unreasonable verdict argument is simply an attempt to re-argue factual matters which were properly within the trial judge’s purview to find.

(ii) Did the trial judge err in her application of the principles from R. v. W.(D.)?

[18] The Appellant argues that the trial judge did not properly apply the principles from R. v. W.(D.), [1991] 1 S.C.R. 742. In particular the Appellant raises issues with respect to both the second and third branches of W.(D.) (the second branch is raised in the factum; the third branch is raised in the Notice of Appeal). In my view, reading the trial judge’s reasons as a whole makes clear that she properly applied the principles set out in W.(D.) in relation to the burden of proof beyond a reasonable doubt.

[19] The Appellant argues that the trial judge failed to articulate the W.(D.) test, or make any reference to the third prong of the analysis. With respect, I disagree. The trial judge did refer to W.(D.), although she did not repeat the test chapter and verse (see Reasons for Judgment, transcript of November 16, 2018, p. 178). It is not surprising that the trial judge did not repeat the W.(D.) formulation. It is the law trial judges work with every day, and it had been adverted to in argument by Crown counsel (see Submissions of Crown counsel, transcript of November 16, 2018, p. 160).

[20] In any event, the issue with W.(D.) is not whether a trial judge has repeated it like a mantra – some judges choose to do so, some do not. Rather, the issue is whether the trial judge applied the substance of the approach from W.(D.). In my view, the trial judge in this case clearly did so.

[21] Reading the trial judge’s reasons as a whole, it is clear that she did not believe the Appellant’s evidence, that the Appellant’s evidence did not leave her with a reasonable doubt, and that she found that the Crown’s case was sufficient to prove the charges beyond a reasonable doubt. I find that the portions of the trial judge’s reasons from p. 169 to p. 185 of the transcript address the first two branches of W.(D.) The word the trial judge repeatedly uses in relation to the Appellant’s evidence was that she “reject[s]” it. In my view, it is clear from the context of the reasons as a whole that the trial judge’s use of the word “reject” encompassed the first two branches of the W.(D.) analysis. The word “reject” is stronger than just “not believing” a defendant’s evidence. It is for this reason that I read this part of the trial judge’s reasons in this case as addressing both the first and second branches of W.(D.).

[22] The trial judge then goes on to consider whether the balance of the evidence (i.e., the Crown’s case) is sufficient to prove both charges beyond a reasonable doubt, and finds that it is sufficient. This is the third branch of the W.(D.) analysis, whether the trial judge expressly labels it as such or not. This portion of her reasons is at pp. 184 to 187. The trial judge explains why she is persuaded that the Appellant left the scene to avoid civil or criminal liability. The trial judge also explains the reasons why she is persuaded that the Crown has sufficiently proved impairment of the ability to operate a motor vehicle. I note that on the latter issue the trial judge refers to at least five aspects of the evidence that she relies on in concluding that impairment of the ability to operate was proven. In making her findings regarding both counts, the trial judge explicitly refers to the Crown’s burden of proof beyond a reasonable doubt.

(iii) Are the reasons of the trial judge inadequate?

[23] I note that the issue of the adequacy of the trial judge’s reasons was not explored in any detail by the Appellant either in the factum, or in oral argument. However, I address it, as it is asserted, albeit briefly, in the Appellant’s factum.

[24] Where an appellate court is asked to consider an argument about sufficiency of reasons, the court should take a functional approach to the reasons, reading them as a whole, in the context of the evidence and arguments at trial, and with an appreciation of the purposes for which reasons are delivered (telling the parties why the decision was made, public accountability, and permitting meaningful appellate review). A trial judge’s reasons must be intelligible, in the sense that the factual findings linking the evidence to the verdict can be logically discerned. In other words, do the reasons explain the logical connection between “what” the trial judge decided, and “why” she decided it? In deciding if the trial judge’s reasons establish the logical connection between the verdict and the basis for the verdict, an appellate court should consider the reasons in the context of the evidence, the submissions of counsel, and the live issues at trial, in order to determine the live issues as they emerged at trial. A trial judge is not required to make express findings on every piece of evidence or controverted fact: R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at paras. 11-21, 25, 35, 55-57; R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 at paras. 24-33, 46, 55.

[25] In my view, the trial judge explains the reasons for her conclusions in a way that meets the requirements of cases such as R.E.M. and Sheppard. The reasons clearly explain the “what” and the “why” of what the trial judge decided, including clearly articulated credibility findings. The reasons are sufficient to serve the functional purposes of reasons of explaining why the Appellant was convicted, providing public accountability, and permitting effective appellate review.

[26] For these reasons, the appeal is dismissed. I thank counsel for their helpful submissions.

Justice J. Copeland Released: February 28, 2020