COURT FILE NO.: 16-13718
DATE: 20200313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NICHOLAS CICUTTI
Appellant
Carl Lem, for the Crown
Matthew Wolfson, for the Appellant
HEARD: February 26, 2020
Decision on appeal
R. Smith J.
[1] Nicholas Cicutti (the “Appellant”) was convicted of having care and control of a motor vehicle while his ability to do so was impaired and while he was “over 80”. The “over 80” charge was conditionally stayed.
Grounds
[2] The Appellant alleges that the police officer breached his rights under s.10(b) of the Charter by failing to provide him with a Prosper warning when the Appellant indicated that he no longer wanted to speak with a lawyer while at the hospital, after he made several unsuccessful attempts to contact one. The Appellant then provided breath samples which indicated a blood alcohol reading of 241 and 243.
[3] The trial judge found that a Prosper warning was not required in the circumstances because the Appellant was not being diligent enough in trying to contact a lawyer. Tthe Appellant argues that this was a reversible error.
[4] The Appellant also argues that his rights under section 8 of the Charter were breached because there was no evidence if or when a demand for the Appellant’s breath was made and as such there was an absence of evidence of whether the demand was made “as soon as practicable”. The trial judge found that there was a breach of section 8 of the Charter but held that it was not serious and admitted the breath samples under section 24(2) of the Charter. The Appellant submits that the trial judge erred by finding that the breach was not serious in the circumstances.
[5] Finally, the Appellant argues in oral submission that the trial judge’s finding that the Appellant was driving while impaired was tainted by the admission of the breath sample readings of 241 and 243, which the Appellant argues were admitted in error. The Appellant did not make any submissions on the impaired charge at trial or in this written factum on appeal.
[6] The Crown argues that the Appellant should not be allowed to raise an argument on the impaired driving charge for the first time on appeal having not made any submissions on the impaired driving charge at trial.
[7] The Crown further submits that the trial judge’s finding that the Appellant was driving while impaired was amply supported by the evidence. This is the case even without considering the evidence of the breath sample readings. A finding of guilt for driving while impaired is justified based on the evidence. The trial judge relied on as outlined at p. 34 of her decision. The Crown further submits that there is sufficient evidence to support the trial judge’s finding of driving while impaired even if the breath sample evidence and all of the police officer’s evidence was excluded.
[8] The Crown submits that there was no requirement for the officer to provide a Prosper warning because the Appellant was not being diligent in seeking to speak to a lawyer; that the trial judge’s finding that the officer’s exchanges with the Appellant constituted a Prosper warning should be given deference, and finally that the trial judge did not make an error in her section 24(2) analysis weighing the Grant factors which she found favoured admission of the breath sample evidence.
Issue #1
Was the trial judge’s finding that the Appellant was guilty of driving a motor vehicle while impaired unreasonable or unsupported by the evidence?
[9] The evidence of the Appellant’s impairment, without relying on the breath samples was as follows:
I. Evidence from the civilian witness who saw him:
a) He was apparently fading in and out of consciousness while driving,
b) He caused his car to lurch along Merivale Rd, with other motorists driving around him and honking,
c) He drove through a busy intersection on a diagonal,
d) He proceeded along Merivale Rd, now in the incoming lane of traffic, and
e) He finally collided with a median causing his car to become hung up and stop.
II. Evidence from the paramedics who described him as:
a) Slurring his words,
b) Unable or unwilling to answer questions,
c) Generally uncooperative,
d) Having the smell of alcohol on his breath,
e) Having an unstable gait, and
f) Making utterances to the effect that:
i. He was ashamed for having drank,
ii. He had drunk about half a bottle of vodka, and
iii. “I should have walked”.
[10] Defence did not make any submissions at trial to oppose a finding that the Appellant was driving a motor vehicle while impaired.
Legal Test
[11] Section 686(1) of the Code states that the Court of Appeal:
a) May allow an appeal where
i. The verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
ii. The verdict should be set aside on the ground of a wrong decision on a question of law, or
iii. On any other ground where there is a miscarriage of justice, and
b) May dismiss an appeal where:
i. The court is of the opinion that the Appellant although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment.
[12] In R. v. Burns, (1994) 1994 CanLII 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.) at paras 198-199 the Supreme Court stated as follows:
In proceeding under s. 686(1)(a), the Court of Appeal is entitled to review the evidence, re-examining it and reweighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it […] Provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [emphasis added]
[13] In R. v. S.(P.L.), (1991), 1991 CanLII 103 (SCC), 64 C.C.C. (3d) 193 (S.C.C.) at para 197 the Supreme Court stated that:
The role of the appellate court is to determine whether on the facts that were before the initial trier of fact, a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test. The appellate court may disagree with the verdict but provided that the accused has ahd a trial in which the legal rules have been observed, no complaint can be upheld if there is, on the evidence, a reasonably basis for the verdict.
[14] In R. v. Biniaris, (2000) 2000 SCC 15, 143 C. C.C. (3d) 1 (S.C.C.) at para 24 stated as follows:
Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonably differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. [emphasis added]
[15] At para 34 of her decision the trial judge set out her reasons for convicting the Appellant of the charge of impaired driving which was distinct from the “over 80” charge. Her findings were as follows:
In regard to the impaired again, no submissions were made. The court must look at all of the circumstances to determine whether or not they are satisfied beyond a reasonable doubt that the Crown has proved that the accused’s ability to operate a motor vehicle was impaired by alcohol. In this case, I am satisfied beyond a reasonable doubt that the Crown has proved that offence. And without going into all of the details at this particular point, there is, of course, the evidence of driving, and the evidence of the civilian, which I did not review. In regards to the Charter, it was not relevant to that issue. It is, of course, very relevant in regards to the impairment, her description of what the vehicle was doing, of what the accused was doing, how it ended up going the wrong way, being struck on the median, “drifting” was the description used at times, that he was slumped over. There’s the evidence of the paramedics in regards to odour, in regards to speech, in regards to conversations, the evidence of the officer again in regards to the odor, the behaviour, the slurred speech, the drifting in and out, the conversations, and, as well, there is, of course, the comments made by Mr. Cicutti.
[16] The evidence of the observations of the civilian who observed the manner of the Appellant’s driving, fading in and out of consciousness, lurching along Merivale Road, driving through an intersection on a diagonal into an incoming lane of traffic and finally colliding with becoming hung up on the median is compelling evidence of impaired driving when considered with the evidence of the civilian and the paramedics set out above.
[17] The trial judge’s reasons for convicting the Appellant on the charge of impaired driving as set out on p. 34 referred to above are amply supported by the evidence and are not unreasonable and as a result I find no error in her finding the Appellant guilty of impaired driving.
[18] In her reasons, the trial judge specifically stated that she did not include the breath sample readings as a factor for finding the Appellant guilty of impaired driving.
[19] I find that the Appellant’s submission that the trial judge’s finding of impaired driving was tainted by inadmissible evidence of the breath samples was mere speculation.
[20] The evidence that the Appellant was driving while impaired was so overwhelming that counsel for the Appellant did not make any submissions opposing the finding of impaired driving at trial or in his factum on this appeal.
[21] Even if the breath sample evidence was admitted in error as a result of the alleged Charter breaches, (which I do not find), the trial judge’s decision to find the Appellant guilty of impaired driving was amply supported by the evidence, without considering the breath sample evidence or even any of the officer’s evidence.
[22] In these circumstances, it is not necessary for me to address the alleged breaches of s. 10(b) and s. 8 of the Charter of Rights and Freedoms to dispose of this appeal. In R. v. Ostojic, 2019 O.J. No 3909 at paras 7-11 the court held that there is no right of appeal of a conditional stay, which was granted on the “over 80” charge in any event.
Disposition
[23] The appeal is dismissed for the above reasons.
Justice Robert Smith
Released: March 13, 2020
COURT FILE NO.: 16-13718
DATE: 20200313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NICHOLAS CICUTTI
Appellant
Decision on appeal
R. Smith J.
Released: March 13, 2020