Court File and Parties

Court File No.: CR 14/18 Date: 2020 01 24

Ontario Superior Court of Justice

Summary Conviction Appeal Court

Between:

HER MAJESTY THE QUEEN R. Allman, for the Respondent Respondent

- and -

LEIGH MCQUAT C. Lynch, for the Appellant Appellant

Heard: October 11, 2019 in Orangeville

Reasons for Judgment

[On appeal from the conviction of Justice Douglas Maund dated May 18, 2018]

André J.

1Mr. Leigh McQuat appeals his conviction by Justice Douglas Maund on May 18, 2018, on a charge of impaired driving. His counsel submits that the learned trial judge committed palpable errors in his assessment of the evidence of the Crown’s witnesses which are not entitled to deference by an appellate court. The Crown demurs and submits that the trial judge committed no such errors.

Summary of Evidence

2During the evening of June 15, 2016, Brandon Mohan was driving north on Highway 10 towards Orangeville, when he observed a vehicle ahead of him driving erratically which, as it turned out, was being driven by Mr. McQuat. Mr. Mohan called 9-1-1 at 11:21 p.m. and a police car soon appeared at the scene driven by O.P.P. Constable Kayla Robichaud. Cst. Robichaud testified at Mr. McQuat’s trial that she saw the vehicle swerving to the right onto the dirt shoulder and veering back onto the pavement. She subsequently stopped the vehicle and spoke to Mr. McQuat. She observed that Mr. McQuat’s eyes were glossy, he appeared confused and she smelt of a strong odour of alcohol coming from his breath. Mr. McQuat almost fell while he stepped out of his vehicle and had to grab the door of his car to maintain his balance. Cst. Robichaud, based on her observations, formed reasonable and probable grounds to arrest Mr. McQuat and did so at 11:35 p.m. The officer made a breath demand at 11:40 p.m. to which Mr. McQuat replied: “I am not going to blow shit, go fuck yourself”.

3Another officer searched Mr. McQuat’s vehicle and found empty beer bottles within reach of the driver’s seat and also full bottles of alcohol in the trunk with a receipt for a purchase at 8:34 p.m. that evening from an LCBO on Steeles Avenue in Toronto.

4The officer transported Mr. McQuat to the Caledon Detachment. While en route, Mr. McQuat made a number of sexist, derogatory comments to her.

5Upon arrival at the detachment, the officer called a number given to her by Mr. McQuat. A recorded voice indicated that it was out of service. The number later turned out to be an active number of a law office. Cst. Robichaud did an internet search for the law office of Carrie Bellan and obtained another number. She called this number and left a message. She then called duty counsel at 12:20 a.m. Mr. McQuat spoke to duty counsel between 12:34 a.m. and 12:47 a.m.

6The officer turned Mr. McQuat over to the breathalyzer technician, Sergeant Thomas Shantz. The officer gave Mr. McQuat numerous opportunities to provide a breath sample into the breathalyzer machine. Mr. McQuat did not comply with the officer’s instructions to make a sustained blow into the instrument. The officer testified that on all attempted blows, a hissing sound of escaping air could be heard. Sergeant Shantz also testified that he detected a strong odour of alcohol on Mr. McQuat’s breath; that the accused had slow motor skills as well as a dry mouth and lips; and as a result he concluded that Mr. McQuat was slightly impaired.

Mr. McQuat’s Evidence

7Mr. McQuat testified that he is a qualified welder. He suffered from sciatica nerve pain and experienced severe pain in his right leg for three years. He attributed his motor skills on the date of his arrest to significant pain in his right leg. While driving, he pulled off to the side of the road to clear his eyes because of “arc flash” which he was experiencing at the time. He testified that P.C. Robichaud arrested him without any conversation and only told him that he was under arrest for “impaired.” He told the officer he was suffering from arc flash that day. He admitted using the door to maintain his balance but testified he only did so because his hip was sore. Following his arrest, he specifically asked to speak to his counsel, Carrie Bellan, because he had previously dealt with her. He also testified that the officer refused to read him his rights to counsel.

8About his alcohol consumption prior to his arrest, Mr. McQuat testified that he had had “a couple of drinks” at a restaurant after he finished work at 7:30 p.m. He denied that he was impaired by alcohol to any degree when he drove to Orangeville that night.

9Mr. McQuat testified that he had wished to speak to his counsel, rather than duty counsel. He stated that he was never asked if he was satisfied with his conversation with duty counsel.

10Ms. Kim Darch, a legal assistant of Carrie Bellan, testified that she reviewed her log book for the month of June 2016 and made no notes of any calls from Cst. Robichaud about Mr. McQuat during this month.

Trial Judge’s Decision

11Justice Maund accepted Ms. Darch’s testimony that there were no calls from Constable Robichaud on June 6, 2016. He concluded that the officer must have called the wrong numbers and to that extent, “her actions were careless in the extreme”: Reasons for Judgment, dated May 17, 2018, at para. 78. Justice Maund found that Mr. McQuat’s s. 10(b) Charter rights had been infringed and that the evidence concerning the charge of failure to provide a breath sample had to be excluded. He therefore dismissed the charge of failure to provide a breath sample against Mr. McQuat.

12Regarding the charge of impairment, Justice Maund concluded at paras. 101-103 that:

I did not find the evidence of Mr. McQuat reliable nor credible. I find that I am not left in reasonable doubt on the basis of his evidence as a whole in relation to the issue of impairment.

The evidence of civilian witness and the three officers in support of impairment was strong, consistent and reliable, in my view. The opinion of the experienced breath technician was that the Defendant was “slightly impaired.” Even a slight degree of impairment is sufficient to meet the test in Stellato.

I am satisfied that the Crown has proven guilt on count one beyond a reasonable doubt. There will be a finding of guilt.

Position of the Appellant

13Mr. Allman submits, on behalf of his client, that:

(1) The learned trial judge erred in law by not properly applying the test set out in R. v. W.(D.), [1991] 1 S.C.R. 742.

(2) His Honour Justice Maund erred in law by adopting the technician’s opinion that the applicant was slightly impaired without applying the court’s own independent assessment of the available evidence and the application of the principles of impairment in the context of operating a motor vehicle as per R. v. Andrews, 1996 ABCA 23, 178 A.R. 182.

(3) The court made palpable errors in its assessment of the evidence of the civilian Mr. Mohan and the arresting officer Cst. Robichaud that give rise to their evidence found by the court to be supportive of impairment by alcohol. In contrast, the evidence of the breath technician, P.C. Shantz, in support of his conclusion of “impaired slightly” was the strong odour of alcohol and a paucity of other routinely made observations in subjects who are said to be impaired by alcohol.

(4) The court failed to give proper weight to medical issues, particularly as they relate to the applicant’s mobility, that might impact on observations that could be consistent with either impairment by alcohol or a physical disability.

Position of the Crown

14The Crown submits that:

(1) Findings of credibility made by the trial judge are within the discretion of the trial judge and, absent palpable error, should not be interfered with.

(2) The trial judge applied the correct law when he concluded that any degree of impairment, however slight, is sufficient for a finding of guilt for the offence of impaired operation of a motor vehicle.

Analysis

15This appeal raises the following issues:

1. What is the standard of appellate review in this case?
2. Did the trial judge err in law in his application of the test set out in R. v. W.(D.)?
3. Did the trial judge err by adopting the breathalyzer technician’s evidence that Mr. McQuat was “slightly impaired” without conducting an independent assessment of the evidence?
4. Did the trial judge make palpable errors in his assessment of the evidence of Mr. Mohan and Cst. Robichaud?
5. Did the trial judge give proper weight to Mr. McQuat’s evidence concerning his medical issues?

What is the standard of appellate review?

16An appellate court should only grant an appeal of a trial judge’s decision if:

(1) it cannot be supported by the evidence; (2) it is clearly wrong in law; (3) it is clearly unreasonable; or (4) there was a miscarriage of justice.

See R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561, at para. 32.

17For questions of fact, the standard of review is palpable and overriding error, while for questions of law the standard of review is one of correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 10.

Did the trial judge err in his application of the test set out in R. v. W.(D.)?

18Mr. McQuat’s counsel submits that His Honour erred by reversing the procedure set out in R. v. W.(D.). He initially focused upon the Crown’s evidence and concluded at the outset that the three officers’ evidence constituted proof of the offence beyond a reasonable doubt. Only later in his judgment at para. 90, did he purport to follow the analytical procedure in R. v. W.(D.) and focus upon the accused’s evidence.

19A reversal of the order in which elements of the analytical procedure set out in W.(D.) are addressed does not constitute a reversible error. As the Court of Appeal for Ontario noted in R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at para. 51:

The formula in W. (D.) is not a magic incantation, its chant essential to appellate approval and its absence a ticket to a new trial. Its underlying message is that the burden of proof resides with the prosecution, must rise to the level of proof beyond a reasonable doubt in connection with each essential element of the offence, and, absent statutory reversal, does not travel to the person charged, even if his or her explanation is not believed.

20Futhermore, in R v. Minuskin, [2003] 68 OR (3d) 577, the Ontario Court of Appeal noted at para. 22 that a trial judge is not expected to approach the evidence “in any particular chronology.”

21Maund J. addressed credibility issues with Mr. McQuat’s testimony and concluded that the appellant was neither credible nor reliable (Reasons for Judgment, at paras. 91-100). He also addressed whether Mr. McQuat’s evidence left him in a state of reasonable doubt and concluded, after reviewing the evidence, that it did not (at para. 101). He also concluded, based on the testimony of the Crown’s witnesses that he accepted, that the Crown had proven its case on the charge of impaired operation beyond a reasonable doubt. He therefore provided cogent reasons for his decision and did not regard the determination of guilt as a credibility contest between the Crown and defence evidence.

22For these reasons, this ground of appeal fails.

Did the trial judge err in law by adopting the breathalyzer technician’s finding of slight impairment without independently assessing the evidence in support of such a finding?

23The appellant’s counsel submits that the trial judge erred in so doing. He submits, based on the decision of Andrews at paras. 16-17, that Maund J. failed to appreciate the distinction between slight impairment by the accused at a particular time and whether Mr. McQuat’s ability to operate a motor vehicle was impaired, irrespective how slight.

24In R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), the Court of Appeal for Ontario noted the following:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

25There was ample evidence in this case to support the trial judge’s conclusion that the Crown had proven the appellant’s guilt of impaired operation of a motor vehicle beyond a reasonable doubt.

26First, the trial judge accepted Mr. Mohan’s evidence that the appellant’s driving “included multiple weaving” and “unexplained braking”. He concluded that this evidence “was not diminished” under cross-examination.

27Second, he accepted Cst. Robichaud’s evidence that she smelt alcohol on Mr. McQuat’s breath; that he nearly fell out of his car; and that he was unsteady on his feet. He concluded that P.C. Palimanan “generally corroborated” Cst. Robichaud’s testimony regarding the indicators of impairment she had observed. Justice Maund also disbelieved Mr. McQuat’s evidence and found that it did not raise a reasonable doubt in the Crown’s case. He gave reasons why he did not accept Mr. McQuat’s evidence that his mobility problems were due to a sciatica problem given that he “walked in and out of the breathroom without apparent difficulty”. Justice Maund concluded at para. 100 that Mr. McQuat’s “medical condition generally does not raise a reasonable doubt”.

28Second, Mr. McQuat attributed his erratic driving to a sudden onset of arc flash from welding earlier that day and his varying speeds to the hilly terrain on Highway 10 south of Orangeville.

29Justice Maund found that this evidence was “simply not credible” and provided reasons for this conclusion. He stated at para. 96 that the weaving observed by Mr. Mohan “was significantly more significant than what the defendant described”. Second, he stated that Mr. McQuat did not give “a cogent explanation” for repeated braking or having to vary his speeds …” Third, he concluded that Mr. McQuat’s evidence that his erratic driving resulted from a sudden onset of arc flash was not credible because Mr. McQuat was not in any apparent distress while he was in the breathroom, which was “a brightly lit institutional room with fluorescent lighting”.

30In my view, it was open to the trial judge to find Mr. McQuat’s evidence not credible or incapable of raising a reasonable doubt. It was also open to him to accept the evidence of the police witnesses concerning the indicia of impairment they had observed on Mr. McQuat. To that extent, this ground of appeal must fail.

Did the trial judge give proper weight to Mr. McQuat’s evidence concerning his medical issues?

31As already indicated, the trial judge concluded at para. 101 that he did not find Mr. McQuat’s evidence to be credible, neither did it leave him in a state of reasonable doubt. It was open to him to make those findings, based on the trial evidence. The fact that I may have arrived at a different conclusion does not permit me to find that the trial judge erred in his factual findings.

32For the above reasons, this ground of appeal must fail.

Conclusion

33Mr. McQuat’s appeal of his conviction is dismissed. The stay of his driving prohibition is vacated.

André J.