COURT FILE NO.: CR-19-20-00AP DATE: 2020 04 21

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – MANUEL FERNANDES-DESA Appellant

COUNSEL: Michelle Occhiogrosso, for the Respondent Joseph Wilkinson, for the Appellant

HEARD: December 13, 2019, in Orangeville, Ontario

REASONS FOR JUDGMENT

[On appeal from the Judgment of Schwarzl J. dated April 15, 2019]

DENNISON J.

OVERVIEW

[1] On April 15, 2019, after a short trial before the Honourable Mr. Justice Schwarzl, the appellant was convicted of impaired driving. He was sentenced to the mandatory minimum driving prohibition and a fine of $1,200.00.

[2] The only witness called at trial was PC McElwain. PC McElwain testified that he observed the appellant driving a pick-up truck that crossed the line in the middle of the highway twice and drove onto the shoulder for approximately 100 metres. When PC McElwain stopped the vehicle and approached the pick-up truck, he observed the smell of alcohol coming from the appellant. The appellant also had red, bloodshot eyes, his speech was slightly slurred, he stared through the officer, and he was slow to respond to commands.

[3] There was an inconsistency in PC McElwain’s evidence as to when he formed the grounds to arrest the appellant. At trial, PC McElwain testified that he had reasonable grounds to arrest the appellant after speaking to him at the pick-up truck. In the police synopsis that PC McElwain prepared, he stated that he asked the appellant to get out of the car to take a roadside breathalyser test, suggesting that he did not have grounds to arrest the appellant until after the appellant walked to the police cruiser with the officer.

[4] The appellant raises three issues on this summary conviction appeal:

1. Do the trial judge’s reasons sufficiently explain why he accepted the officer’s evidence in light of the officer’s prior inconsistent statement?
2. Did the trial judge misapprehend evidence that resulted in the trial judge reversing the burden of proof onto the appellant?
3. Is the verdict unreasonable?

[5] For the reasons outlined below, the appeal is dismissed.

SUMMARY OF THE EVIDENCE AT TRIAL

[6] On May 12, 2018 at approximately 11:31 p.m., PC McElwain observed the appellant driving a Chevrolet pick-up truck southbound on Highway 10 in the town of Mona, Ontario. There was another vehicle between PC McElwain’s cruiser and the appellant’s pick-up truck.

[7] PC McElwain observed the pick-up truck swerving quite significantly within its lane. He stated that the pick-up truck could not stay on a straight path. The pick-up truck crossed over the centreline into northbound traffic two times. PC McElwain testified that the vehicle did not cross the line very far, but it did cross the line. PC McElwain also observed the pick-up truck drive over the white line on the right-hand side of the road onto the shoulder. The two right tires of the pick-up truck remained over the white line for approximately 100 metres. PC McElwain did not recall any cloud of dust as a result of the vehicle driving on the shoulder.

[8] PC McElwain stopped the pick-up truck, which was a green, Chevy Silverado with licence plate number AV59290. PC McElwain exited his vehicle and approached the pick-up truck. He spoke to the appellant who was the driver of the vehicle. There was also a male passenger in the front seat. PC McElwain observed that both males were smoking cigarettes. When he was speaking with the appellant, PC McElwain could also smell a strong odour of alcohol that appeared to be coming from the appellant. The appellant’s eyes were red, bloodshot and glossy. The officer also stated that it was as if the appellant was staring through him and the appellant did not maintain direct eye contact.

[9] PC McElwain asked the appellant where he was coming from. The appellant responded that he was driving home to Woodbridge from Dundalk where he and the male passenger had been hunting. The appellant stated that he only drank a coffee, not alcohol. In speaking with the appellant, PC McElwain noted a slight slur in the appellant’s speech. PC McElwain acknowledged that the appellant’s first language was Portuguese, not English. The appellant appeared to understand the questions that PC McElwain asked and responded in English. In cross-examination, PC McElwain agreed that the appellant might have had a thick accent as opposed to a slight slur. He also agreed that the duty counsel advised him that they were trying to get the appellant a Portuguese interpreter.

[10] PC McElwain testified that the passenger stated he had been drinking beer, but the odour of alcohol appeared to be coming from the appellant. PC McElwain requested the appellant’s driver’s licence, ownership and insurance. The appellant’s movements were slow in retrieving the documentation. The appellant only provided the ownership and insurance, so PC McElwain had to remind him to provide his driver’s licence. PC McElwain could not recall from where the appellant retrieved the documentation. He believed the appellant’s ownership and insurance were in the glove box, but he did not make a note of that. He agreed that the appellant did not drop or fumble the documents when he handed them to PC McElwain.

[11] PC McElwain returned to the cruiser to run some checks and then returned to the pick-up truck. PC McElwain testified that when he returned to the pick-up truck, he had formed his grounds to arrest the appellant. PC McElwain testified that he advised the appellant to get out of the pick-up truck to do a roadside test as stated in his notes. He testified that he wanted to see the appellant walk to obtain further grounds in support of the arrest. He stated that if he intended to conduct a roadside screening test, he would have done that while the appellant was still in the pick-up truck.

[12] The synopsis prepared by PC McElwain stated that he told the appellant to exit the vehicle and walk back to the police cruiser to conduct a roadside approved screening device. PC McElwain testified that he did not give the appellant a roadside-screening test. In cross-examination, PC McElwain agreed with the suggestion that his synopsis gave the impression that he did not have reasonable and probable grounds to arrest the appellant until he walked him back to the police cruiser. PC McElwain explained that he was an inexperienced officer at the time and thought he should have the appellant walk back to the police cruiser to provide further grounds for the arrest. At the time of the appellant’s arrest, PC McElwain had been an officer for approximately a year and a half. This was his third time testifying in court. Given his testimony that he had grounds to arrest the appellant while he was still in the pick-up truck, PC McElwain agreed that he improperly delayed arresting the appellant for several minutes.

[13] In light of the apparent Charter breach, Crown counsel did not rely on the observations that PC McElwain made while the appellant was walking back to the police vehicle. PC McElwain had testified that while the appellant was walking back to the police vehicle the appellant was unsteady on his feet, a little off-balance, and seemed to stagger a bit. PC McElwain agreed that the gravel shoulder was graded downward away from the concrete and that the appellant’s unsteady gait may have been due to the uneven ground. The appellant did not appear to have any trouble with his balance at the police station.

[14] At approximately 11:46 p.m., once the appellant was in the police cruiser, PC McElwain placed him under arrest. PC McElwain advised the appellant of his rights to counsel. According to PC McElwain, the smell of alcohol was even stronger once the appellant was seated in the police cruiser. PC McElwain also testified that the appellant displayed similar indicia of impairment back at the police station, including the smell of alcohol, glossy eyes and slurred speech.

[15] At trial, the appellant argued that there were reliability and credibility concerns about the officer’s observations given the inconsistency between the officer’s evidence at trial and his synopsis about when the officer formed the grounds to arrest the appellant. Counsel did not suggest that the officer was lying, but rather that his evidence was not reliable given this inconsistency and therefore the court could not be sure that the appellant was impaired.

[16] The appellant’s counsel also submitted that it did not make sense that the pick-up truck drove on the shoulder of the highway, yet there was not a cloud of dust. He submitted that the Crown had not proven the offence beyond a reasonable doubt given the minor driving aberrations. He also submitted that the officer’s observations were consistent with other reasonable inferences aside from impairment, including the fact that English was not the appellant’s first language and that the slowness in producing documentation may have been as a result of where the documents were located, which the officer could not recall.

[17] The Crown submitted that based on the constellation of factors, including the appellant’s bad driving, the smell of alcohol from the appellant, his bloodshot eyes and slow response in retrieving the documents, the Crown had proven its case beyond a reasonable doubt. The Crown submitted that all of these factors supported a finding that the appellant was operating a motor vehicle while impaired.

TRIAL JUDGE’S REASONS

[18] The trial judge gave oral reasons for judgment immediately after the conclusion of the trial and found the appellant guilty of impaired driving. The trial judge recognized that a key feature of the cross-examination of PC McElwain was the inconsistency in the officer’s evidence and his synopsis as to when he formed grounds to arrest the appellant. As the trial judge stated:

One of the key features of the cross-examination of Officer McElwain was a suggestion that the officer didn’t think the driver was actually too drunk to because of two reasons. One, in his report he said he was going to require the defendant to provide a test into an approved screening device, and secondly, the officer’s evidence is that he wanted to see how Mr. Fernandes-Desa walked. Now, the officer also testified that before he told Mr. Fernandes-Desa to get out of the truck he already thought he was intoxicated but wanted to bolster or confirm his belief.

In his submissions, Mr. Lacy submits that this is a confusing mess from the officer and should leave me in a state of reasonable doubt as to what the facts actually are and how to assess them.

[19] The trial judge reviewed the officer’s observations of the appellant’s driving. He found that this evidence was essentially unchallenged, aside from the evidence about the appellant driving on the shoulder. The trial judge found that the “absence of evidence of a dust cloud did not undermine the reliability of the officer’s otherwise unchallenged observations of driving”. The trial judge did not find that there were minor driving aberrations as the appellant suggested.

[20] The trial judge recognized that one does not have to be impaired to drive poorly. He then considered the officer’s observations of the appellant, including the appellant’s red and bloodshot eyes. The trial judge did not accept the argument that this was the result of the officer shining a flashlight in the appellant’s eyes. The trial judge also rejected the appellant’s suggestion that the blank stare and the slowness in processing commands was the result of the appellant not fully understanding the officer. The trial judge held that while the appellant’s first language was not English, the officer’s evidence was unchallenged that in response to direct and simple questions in English, the appellant answered the questions in English, “directly with some full sentences without delay”.

[21] The trial judge found that the Crown had proven beyond a reasonable doubt that the appellant’s ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol. He concluded:

So in my view his slow response to the commands, or incomplete response when it comes to production of the licence, when combined with the red eyes, I think bad driving, and the odor of alcohol, not only gave the officer grounds to believe, or could have and probably should have given the officer grounds to believe that the ability of Mr. Fernandes-Desa to drive a motor vehicle was impaired by alcohol, but those are the facts. There’s no admissible evidence of balance problems once he’s outside the, but it’s clear that he exercised poor judgment in driving. He was delayed in his reactions when speaking with the officer that have nothing to do, in my view, with the fact that English is his second language.

I find beyond a reasonable doubt that the ability of Mr. Fernandes-Desa to operate a motor vehicle was impaired to some degree by the consumption of alcohol, and accordingly a finding of guilt is entered.

ISSUE #1: DO THE TRIAL JUDGE’S REASONS SUFFICIENTLY EXPLAIN WHY HE ACCEPTED THE OFFICER’S EVIDENCE IN LIGHT OF THE OFFICER’S PRIOR INCONSISTENT STATEMENT?

Position of the Parties

[22] The appellant argues that the trial judge’s reasons were inadequate. While the trial judge identified that the central issue was the reliability and credibility of the officer, the trial judge did not sufficiently address this issue in his reasons. At trial, the officer testified that he had grounds to arrest the appellant after he spoke to him at his pick-up truck. In the synopsis, the officer wrote that he asked the appellant to walk back with him to the police cruiser to conduct a roadside screening test. The officer denied at trial that he told the appellant that he was going to conduct a roadside-screening test. The synopsis suggested that the officer did not have reasonable grounds to believe the appellant was impaired. The appellant argues that the officer engaged in retrospective embellishment of what he observed. The appellant submits that he cannot know how or if the trial judge addressed this inconsistency in assessing the officer’s reliability and credibility. Therefore, the reasons are insufficient.

[23] The Crown submits that the reasons are adequate, and the appellant is simply attempting to re-litigate the trial judge’s findings of fact. The trial judge was experienced in hearing these types of cases. Further, the facts were clear in the trial judge’s mind given the short turnaround from hearing the case to delivering his reasons. The Crown submits that when the reasons are read as a whole, it is apparent that the trial judge was alive to the credibility and reliability concerns with the officer’s evidence. Despite these concerns, he determined that the evidence provided a sufficient basis to find that the Crown had proven the case beyond a reasonable doubt.

Analysis

[24] The requirement for adequate reasons fulfills three purposes. First, reasons explain to the accused why they were convicted or acquitted. Essentially, the reasons show why the judge decided as they did. Second, reasons promote public accountability. Third, they permit effective appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-17.

[25] The appellate court must apply a functional context-specific approach in assessing the sufficiency of the reasons: R.E.M., at para. 15. The reasons should be read as a whole in the context of the evidence, the arguments, and the trial: R.E.M., at para. 16. Reasons should not be the “verbalization of the entire process engaged in by the trial judge in reaching a verdict”: R.E.M., at para. 18.

[26] The degree of detail required for reasons varies with the circumstances. The reasons must show that the trial judge “grappled with the substance of the live issues on the trial”: R.E.M., at para. 64.

[27] If the deficiencies in the reasons prevent meaningful appellate review as to the correctness of the decision, then an error of law under s. 688 of the Criminal Code has been committed, which is subject to appellant review: R.E.M., at para. 52. In other words, “the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review”: R.E.M., at para. 53.

[28] It is not disputed that one of the most valuable means of assessing a witness’ credibility is to examine the consistency between what the witness said in the witness box and what the witness said on other occasions: R. v. A.M., 2014 ONCA 769, at para. 12. Some inconsistencies may be important, and others may be minor: A.M., at para. 13. A trial judge is not obligated to review and resolve every inconsistency: A.M., at para. 14. However, a trial judge “should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses”: A.M., at para. 14; see also R. v. Williams, 2018 ONCA 138, at para. 33.

[29] The failure of a trial judge to address a major inconsistency in the evidence may render the reasons insufficient. In R. v. M.G., [1994] O.J. No. 2086 (C.A.) the Court of Appeal for Ontario found the trial judge’s reasons insufficient because of how the trial judge dealt with a prior inconsistent statement of the complainant.

[30] In M.G., the 15-year-old complainant alleged that her 22-year-old cousin pulled his pants down and ordered her to put his penis into her mouth. The complainant testified at trial that there were five instances of sexual abuse. Her evidence at trial was significantly different from an earlier letter she had written to a camp counsellor when she first complained of the sexual abuse. In that letter, she indicated that she was sexually assaulted every week and that it was intercourse. The trial judge accepted the complainant’s evidence that the inconsistency between the letter and the complainant’s evidence was an “overstatement” by the complainant. The trial judge was also satisfied with the complainant’s explanation for the inconsistency. The trial judge convicted the accused of sexual assault.

[31] The Court of Appeal held that the trial judge did not adequately deal with what was a material inconsistency. The Court of Appeal found it was not accurate to characterize the inconsistency as an “overstatement”. The events described by the complainant were significantly different. The Court of Appeal also found that the complainant did not provide an explanation for the inconsistency as the trial judge had found. Ultimately, the Court of Appeal found that the trial judge failed to grasp the importance of the inconsistency and the appeal was allowed: paras. 18-22: see also Williams, at para. 18.

[32] In this case, the trial judge rendered his judgment immediately at the conclusion of the trial while the evidence was fresh in his mind. His reasons, while short, sufficiently demonstrate that he considered the discrepancy in the officer’s evidence and explained why he found the officer’s observations to be reliable and credible despite the inconsistency as to when the officer formed the grounds to arrest the appellant.

[33] The trial judge understood that the appellant’s position was that the officer’s evidence was not reliable and credible because of the inconsistency between his evidence at trial and the synopsis as to when he had grounds to believe the appellant was impaired. The trial judge confirmed that the appellant’s position was that, “if [sic] officer is making errors in his report, like ‘I told him I was going to do an approved screening test,’ it would be unsafe to find no errors in his observations.” The trial judge also recognized that “a key feature of cross-examination was that the officer didn’t think the driver was actually too drunk to drive” because of the inconsistency between the synopsis and the officer’s evidence at trial. The trial judge stated that it was the appellant’s position that the officer’s evidence was “a confusing mess” and should leave the trial judge “in a state of reasonable doubt as to what the facts actually are and how to assess them.”

[34] In this case, unlike in M.G., there were no material inconsistencies in the officer’s evidence with respect to what he observed. Nor was there an inconsistency in the officer’s opinion that the appellant was impaired. The inconsistency was with respect to when the officer formed the opinion based on reasonable and probable grounds that the appellant was driving while impaired.

[35] The appellant argued that this inconsistency was a basis for the officer to embellish his evidence with respect to what he observed. The difficulty with this argument is that the appellant could not point to any inconsistency in the officer’s observations as between his notes, the synopsis and evidence at trial to demonstrate that the officer was embellishing what he observed.

[36] The trial judge found that the officer’s evidence about the appellant’s driving, which was “one of the key components of his evidence” was “essentially unchallenged” except for the part when the officer testified that the appellant drove on the shoulder. The trial judge found that the fact that the officer did not observe a dust cloud on a dark road at 11:30 p.m. did not undermine the reliability of the officer’s otherwise unchallenged observations of the appellant’s driving. The trial judge also considered that the appellant immediately and without incident pulled over his vehicle.

[37] The trial judge also found that the appellant’s driving was not a “minor aberration” as suggested by the appellant. In coming to this conclusion, the trial judge found that the appellant drove on the shoulder of the road for the distance of a football field. He twice went into the oncoming lane and had difficulty staying within his own lane. The trial judge found that the appellant’s driving was the result of his own actions and not some other factor, as the car that was between the officer and the appellant had not demonstrated similar problems.

[38] The trial judge then went on to consider the indicia of impairment. The trial judge explained why he accepted the officer’s observations regarding the appellant’s red, bloodshot eyes. The trial judge did not accept that the appellant’s red, bloodshot eyes were the result of the officer pointing his flashlight into the appellant’s eyes. The trial judge held that the appellant’s eyes were still red and bloodshot back at the station where there were no flashlights.

[39] Similarly, the trial judge did not accept the appellant’s submission that the officer’s observation regarding the appellant’s slowness in processing commands was because the appellant’s first language was not English. He also found that the officer’s evidence was unchallenged that in response to the direct questions asked, the appellant answered in English, “some with full sentences, without delay”.

[40] The trial judge explained why he accepted the officer’s observations and made certain factual findings. It was in that context that the trial judge stated that the officer “could have, probably should have had grounds to arrest the appellant”. In other words, the inconsistency in the officer’s evidence as to when he formed reasonable and probable grounds did not adversely impact the reliability and credibility of the officer’s evidence with respect to what he observed. As the trial judge stated, the observations were “the facts” and there was no inconsistency regarding what the officer observed.

[41] It was up to the trial judge to determine how much or how little weight to give the prior inconsistent statement. Ultimately, he gave it little weight. I find this to be reasonable. As pointed out by trial counsel, the officer’s reasonable and probable grounds for the arrest were not relevant to the charge of impaired driving. As counsel noted what was relevant was whether the officer’s observations were accurate. The trial judge’s reasons explained why he accepted the officer’s evidence of his observations. The reasons also demonstrate that the trial judge recognized that there was an inconsistency as to when the officer formed his grounds to arrest the appellant and that based on the officer’s evidence that the trial judge accepted, the officer “could have and probably should have” had grounds to arrest the appellant at the pick up truck.

[42] I am satisfied that the trial judge’s reasons, while brief, sufficiently explain why the trial judge accepted the officer’s evidence about his observations despite the inconsistency in the officer’s evidence as to when he found grounds to arrest the appellant. The trial judge’s reasons sufficiently grappled with the reliability and credibility of the officer’s observations to permit meaningful appellate review. This ground of appeal is therefore dismissed.

ISSUE #2: DID THE TRIAL JUDGE MISAPPREHEND THE EVIDENCE AND REVERSE THE BURDEN OF PROOF?

Position of the Parties

[43] The appellant submits that the trial judge’s statement in his reasons that “there’s no admissible evidence of balance problems once he’s outside, but it’s clear that he exercised poor judgment in driving” is unclear and suggests that the trial judge reversed the burden of proof. The appellant submits that there was evidence that the appellant’s balance was good at the station, which the trial judge failed to mention. The appellant further submits that this omission, combined with the comment that “he exercised bad judgment”, demonstrates that the trial judge reversed the burden of proof.

[44] The Crown’s position is that the trial judge did not misapprehend the evidence. The trial judge’s findings of fact are entitled to deference. When the reasons are read as a whole it is clear that the trial judge did not reverse the burden of proof.

Analysis

[45] Where the trial judge is mistaken as to the substance of the material parts of the evidence, and those errors play an essential part in the reasoning process that results in a conviction, this will result in an unfair trial and a miscarriage of justice: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at para. 93.

[46] First, I do not find that the trial judge misapprehended the evidence. The trial judge found that there was no evidence that the appellant had poor balance. This was accurate based on the admissible evidence at trial. The lack of evidence that the appellant had balance problems was a factor that the trial judge considered when determining if he was satisfied beyond a reasonable doubt that the appellant was driving while impaired.

[47] Second, when the reasons are read as a whole, I am satisfied that the trial judge did not reverse the burden of proof. The trial judge explained that the appellant was presumed innocent and that the burden of proof was on the Crown to prove the appellant’s guilt beyond a reasonable doubt. The trial judge also noted that in making that determination, he would take into account the evidence as a whole and could accept some, none or all of a witness’ evidence.

[48] The trial judge also properly recognized that the test for impaired driving is not that a person had an alcoholic drink, but rather that their ability to operate the vehicle was impaired by alcohol to any measurable or observable degree.

[49] Third, the trial judge’s comment that the appellant “exercised poor judgment’ in driving was made at the end of the paragraph after the trial judge had reviewed the various facts that led him to conclude that the appellant was impaired. In that sense, the appellant did exercise poor judgment in driving while he was impaired.

[50] When the trial judge’s reasons are read as a whole, there is no basis to find that the trial judge misapprehended the evidence or reversed the burden of proof. This ground of appeal is dismissed.

ISSUE #3: IS THE VERDICT UNREASONABLE?

Position of the Parties

[51] The appellant did not pursue this ground rigorously in oral argument. He argues that the driving observed is consistent with poor driving and that the indicia of impairment are consistent with other inferences aside from impairment. Therefore, cumulatively, it was unreasonable to find the appellant guilty of impaired driving.

[52] In support of his argument, the appellant relies on R. v. Rhayson, 2007 SCC 39, [2007] S.C.J. No. 39. In Rhayson, the Supreme Court of Canada held that evidence of alcohol consumption does not itself constitute evidence of impairment: para. 18. Similarly, the fact that there was an unexplained accident combined with alcohol consumption does not always generate reasonable and probable grounds that the person was impaired: Rhayson, at para. 19. It is a fact-based assessment: Rhayson, at para. 19; see also R. v. Soomal, 2014 ONCJ 220, at paras. 94-101.

[53] The Crown submits that when the constellation of factors in this case are considered a trier of fact could have reasonably reached the conclusion that there was a degree of impairment of the appellant’s ability to operate a motor vehicle. The Crown submits that the appellant is essentially asking the court to improperly re-try the case. The trial judge was in the best position to assess the credibility and reliability of the evidence.

Analysis

[54] In considering whether the verdict is unreasonable, the appellate court must consider whether the verdict is one that a properly instructed jury acting judicially could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. This test imports both an objective and subjective element. In considering the test, the court must review, analyze and within the limits of appellate disadvantage, weigh the evidence: Biniaris, at para. 36.

[55] This is not an opportunity for the appellate court to re-try the case. Indeed, findings of fact made by the trial judge are subject to deference unless the trial judge made an overriding and palpable error: R.E.M., at para. 54.

[56] The trial judge found that based on the constellation of factors, the Crown had proven beyond a reasonable doubt that the appellant operated a motor vehicle while impaired. In coming to this conclusion, the trial judge considered the appellant’s poor driving over an extended period. He also considered that there was the smell of alcohol from the appellant, the appellant’s eyes were red and bloodshot, and the appellant’s response time was slow.

[57] The trial judge also considered possible alternatives for the appellant’s actions. The trial judge found that the poor driving was the result of the driver, not the environment. He rejected the submission that the appellant’s eyes were red and bloodshot because the officer shined his flashlight in the appellant’s eyes. He also rejected the submission that the appellant’s slow reaction time was the result of a language barrier.

[58] Based on the facts as found by the trial judge, it was open to the trial judge to find that the appellant operated a motor vehicle while impaired.

[59] I therefore find that the verdict was reasonable. This ground of appeal is dismissed.

CONCLUSION

[60] For the reasons outlined above, the appeal is dismissed.

Dennison J. Released: April 21, 2020