COURT FILE NO.: CR-20-10000031-00AP
DATE: 20200929
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Helen Song, for the Respondent
HER MAJESTY THE QUEEN
– and –
MATTHEW CHEVOLLEAU
Appellant
Arvin Ross, for the Appellant
HEARD: September 18, 2020
B.A. ALLEN J.
REASONS FOR JUDGMENT
(On a Summary Conviction Appeal)
BACKGROUND
The Convictions
[1] The appellant, Matthew Chevolleau, was convicted by Justice R. Maxwell of the Ontario Court of Justice on March 2, 2020. He was convicted on the offences of operating a motor vehicle while impaired and driving with levels over 80 milligrams of blood alcohol.
The Incident
[2] Just before 3:00 a.m. on March 24, 2018, Mr. Chevolleau was operating a white pickup truck on Highway 404 when he lost control. The vehicle struck a concrete barrier and flipped onto its side. Monica Shokri, who was driving in front of him, and other drivers, stopped to assist Mr. Chevolleau. Emergency medical services, fire services and the police attended the scene. Officer Choe was the first officer to arrive at approximately 3:05 a.m. As the officer in charge, he took control of the incident and investigation.
[3] Next, Officers Noh and Poynter arrived. Officer Noh arrived after Officer Choe and placed Mr. Chevolleau under arrest. Officer Choe tasked Officer Noh with taking a statement from Ms. Shokri. He asked Officer Poytner to return to the station to prepare for taking of a breath sample. Officer Poytner left almost immediately after he arrived to go to the station to prepare for taking samples of breath with an approved Intoxilyzer 8000C.
[4] Officer Noh spoke to Ms. Shokri. She reported that as she was merging onto the highway, Mr. Chevolleau’s vehicle cut in front of her passing at an excessive speed. She told the officer that Mr. Chevolleau’s vehicle was speeding and swerving before it flipped over on its passenger side at the side of the highway.
[5] Officer Choe spoke briefly with Mr. Chevolleau at the roadside to obtain his identification. He asked Mr. Chevolleau for his driver’s licence. The officer observed Mr. Chevolleau to be polite and cooperative throughout the interaction.
[6] Officer Choe escorted Mr. Chevolleau to his scout car to continue the investigation into his identity. Inside the scout car, Officer Choe detected an odour of alcohol coming from Mr. Chevolleau’s breath. He also observed his eyes to be red and glassy. Officer Choe noted that his speech and balance appeared normal. He asked Mr. Chevolleau how much he had to drink. He responded that he had “a couple” which Officer Choe assumed meant a couple of alcoholic beverages.
[7] A breath demand, rights to counsel and caution were read to Mr. Chevolleau. Mr. Chevolleau indicated he wanted to speak to counsel. This process was completed by 3:16 a.m. Before leaving for the station, Officer Choe also readjusted Mr. Chevolleau’s handcuffs to the front because of a complaint about wrist pain. At 3:32 a.m., Officer Choe left the scene with Mr. Chevolleau to return to the station. The first breath sample was taken at 4:12 a.m.
THE LAW
[8] Section 258(1)(c) of the Criminal Code provides a shortcut for the Crown to prove the concentration of alcohol in an accused’s blood for purposes of proving the offence under s. 253(1)(b) of the Criminal Code, that is, providing each sample is taken “as soon as practicable” and that the other prerequisites of s. 258(1)(c) are met. This allows the Crown to rely on “the presumption of identity” as provided under s. 258(1)(c) which deems that the results of the breath tests are proof of an accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary.
[9] The Ontario Court of Appeal has interpreted the phrase “as soon as practicable” in R. v. Vanderbruggen, 2006 9039 (ON CA). In that case, the court laid down principles to flesh out the concept in the context of s. 258(1)(c) of the Criminal Code:
• First, “as soon as practicable” means nothing more than the tests were taken within a reasonably prompt period of time under the circumstances.
• Second, there is no requirement that the tests be taken as soon as possible. The touchstone is whether the police have acted reasonably.
• Third, the Crown is not required to provide a detailed explanation for what occurred during every minute that the accused is in custody; however, unexplained delay or explained delay where the explanation is not reasonable, may result in the conclusion that the presumption is not available.
• Four, the whole chain of events must be considered, bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.
[10] The Court of Appeal explained that the “as soon as practicable” test must be applied with reason and should not be interpreted to require an exact accounting of every moment in the chronology.
[11] The defence does not question any periods of delay from the time of the offence at about 3:00 a.m. to the time of taking of the first sample at 4:12 a.m., except for a 16-minute period between 3:16 a.m., when Mr. Chevolleau was given the breath demand, and 3:32 a.m., when he left the scene with Officer Choe to return to the OPP detachment. It is not in dispute that Mr. Chevolleau’s vehicle was towed away.
GROUNDS OF APPEAL
[12] The appellant advances this appeal on two grounds.
[13] The appellant argues that the trial judge erred in finding that the “as soon as practicable” requirement under s. 258(1)(c)(ii) was met in this case. He argues that in the absence of testimony, the trial judge improperly made inferences as to what took place during the time period at issue. The result was that the Crown was allowed to rely on the “presumption of identity” to relate Mr. Chevolleau’s breath samples back to the time of the offence.
[14] The appellant takes the further position that the trial judge erred in finding that consumption of alcohol impaired his ability to operate a motor vehicle where there was no evidence on the correlation between alcohol consumption and impairment of the ability to operate a motor vehicle.
BLOWING OVER 80 CONVICTION
The Trial Judge’s Inferences
[15] The trial judge found no direct evidence of what transpired during the 16-minute period. She made certain inferences to fill in the time gap which in her opinion were based on evidence and not speculative. Her view was that they are based on common-sense inferences. She acknowledged that, while the inferences may be a minute-by-minute account of everything that occurred during the period at issue, that is not what is required.
[16] The trial judge determined that the following facts may be reasonably inferred:
• that Officer Choe was attending to necessary arrangements in preparation for transporting Mr. Chevolleau to the station;
• that Mr. Chevolleau’s vehicle was towed from the scene;
• as the officer with custody of Mr. Chevolleau, and the only officer on scene before Officer Noh and Officer Poynter arrived, that Officer Choe would have ensured, either directly or through another officer, that arrangements had been made to tow the vehicle;
• that because Officer Choe was busy attending to Mr. Chevolleau after the arrest, he would have needed to speak to Officer Noh to direct him to take a statement from Ms. Shokri;
• that Officer Choe would have contacted the station to advise that a detained person will be brought to the station for breath testing; or alternatively, that Officer Choe spoke with Officer Poynter about the arrest he had made and the need for breath testing at the station; and
• although there is no evidence that Officer Poynter spoke to Officer Choe about returning to the station to prepare for the breath test, that Officer Choe did speak to Officer Poynter about the need to test a subject since Officer Poynter could only have learned this from Officer Choe directly, or indirectly from the division communicating the information provided by Officer Choe.
[17] The time lapse from 3:00 a.m., when Officer Choe arrived on the scene, until the taking of the first breath test at 4:25 a.m., was one hour and 25 minutes which meets the two-hour limit prescribed by the Code. The trial judge concluded, on the evidence in its totality applying the principles in Vanderbruggen, that the Crown successfully proved that the breath samples were taken “as soon as practicable” pursuant to s. 258(1)(c).
THE PARTIES’ POSITIONS
[18] The appellant takes the position that the trial judge improperly proceeded to fill in the evidentiary void with the following inferences:
a) that the arresting officer was making arrangements for the vehicle to be towed;
b) that the arresting officer was speaking with another officer regarding obtaining a witness statement; and
c) that the arresting officer was speaking with the breath technician.
[19] The appellant argues that the trial judge wrongly took judicial notice of the facts she inferred. He submits that in the absence of any evidence on a particular point, it was improper for the judge to conclude that Officer Poynter had a discussion with Officer Choe although she acknowledged that the information could have been obtained from another source, the police station.
[20] It is the appellant’s view that what Officer Choe suggested in testimony was not definite as to him having a conversation with Officer Poynter. He testified he “believed” that Poynter was on scene, not that he was actually on the scene. And the appellant makes the following further submission that it is entirely possible that Officer Poynter returned to the station for an unrelated matter or reason.
[21] Each of the inferences the trial judge relied on, according to the appellant, could involve any number of alternate explanations or scenarios. He argues the inferences amount to mere speculation as to what could have been happening during the relevant timeframe.
[22] The respondent argues this is not a case where resort to judicial notice was required. In the respondent’s view, the trial judge’s findings do not fit within the definition of judicial notice. The argument is that the trial judge was not relying on facts that did not need to be proven, nor relying on facts that were so undisputable or notorious as not to be the subject of dispute among reasonable persons: [R. v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71 (S.C.C.)].
[23] The trial judge, in the respondent’s view, correctly required the Crown to provide proof of what happened during the time period at issue. The respondent takes the view that the trial judge founded her inferences on the evidence before the court and did not need to, and did not, rely on judicial notice. The respondent cites a commonly known legal principle that, provided there is an evidentiary basis for the inferences, the trial judge should be afforded deference. It is not for the appellate court to retry the evidence for the purpose of concluding that a better and more persuasive inference should have been reached: [R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34 (S.C.C.)].
[24] The respondent provided the following areas where in its view the trial judge made reasonable inferences based on the evidentiary record of what occurred during the 16-minute period.
[25] The respondent cites the fact that Officer Choe was the officer in charge of the scene and had an obligation to communicate and delegate certain tasks.
[26] The evidence shows that Officer Choe had to speak to Officer Noh to instruct him to take a statement from Ms. Shokri. So, Officer Choe, also as the officer in charge, would have had to speak to Officer Poynter to direct him that he needed a technician to ready the approved instrument and eventually conduct breath tests.
[27] There is evidence that Officer Choe had to remove Mr. Chevolleau from his car, remove his handcuffs and re-cuff him to the front because he complained about pain from the handcuffs. The officer would have had to interact with Mr. Chevolleau in that situation which would have consumed some time.
[28] About the towing of the vehicle, the respondent takes the position that, although not mentioned in the evidence, the arrangements for towing Mr. Chevolleau’s vehicle would reasonably have been dealt with by Officer Choe as the lead officer. The respondent submits as well that Officer Choe would reasonably have called dispatch to advise they had arrested a person who was being taken to the station so that a breath test could be conducted.
[29] The respondent concludes that although not a minute-by-minute account, the inferences made by the trial judge reasonably accounted for activities during the 16-minute period such that the “as soon as practicable” standard was met.
Court’s Analysis
[30] With the longstanding common law principles governing appeal of trial decisions in mind, I agree with the respondent’s position. The following principles provide guide posts for appellate courts:
• trial judge’s reasons are not held to some abstract standard of perfection;
• the evidence of witnesses must be considered in the context of the evidence as a whole in determining whether there is a reasonable doubt as to the accused’s guilt;
• deference is owed to the trial judge’s findings of credibility;
• an appellate court can only intervene if credibility findings are based on palpable overriding error;
• appellate intervention will be rare;
• an appellate court may only interfere with factual inferences drawn by a trial judge if those inferences are clearly wrong in law, unsupported by the evidence or result in a miscarriage of justice;
• the reasons must respond to the substance of what is at issue; and
• a misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.
[R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24 (S.C.C); R. v. Sanderson 2017 ONCA 470, (Ont. C.A.); R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 (S.C.C.); R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.); and R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34 (S.C.C.)]
[31] I find the trial judge’s findings of fact and inferences were reasonable. The Crown was not required to provide an account of everything that occurred during the 16-minutes. The inferences she arrived at were reasonable and the trial judge sufficiently demonstrated why that was the case. It is not for the appeal judge to interfere with factual inferences drawn by a trial judge unless those inferences are clearly wrong in law, unsupported by the evidence or result in a miscarriage of justice. I do not find that to be the case.
[32] It is reasonable to infer that as the officer in charge Officer Choe would have engaged in several exchanges and directions with other officers and the police station. It is reasonable that the timing of the conversations would have occurred after Mr. Chevolleau was arrested while Officer Choe was still on scene. The evidence of those interactions was not specific to the 16-minutes. But I agree that it only stands to reason there is no other reasonable conclusion but that they occurred during that period. It makes sense as well that Officer Choe would have taken some time when he re-cuffed Mr. Chevolleau to the front.
[33] About the towing, it makes common sense that towing the vehicle would have been a priority due the dangerous risk of a vehicle lying on its side on the side of the highway. That situation would have reasonably been handled before Officer Choe left the scene.
[34] I do not accept that any of the trial judge’s inferences were based on speculation or conjecture. The trial judge adopted a contextual approach taking the totality of the circumstances into account. The trial judge’s decision ought not to be interfered with.
THE IMPAIRED DRIVING CONVICTION
[35] The question is whether the trial judge erred in deciding that Mr. Chevolleau’s ability to operate a motor vehicle was impaired by alcohol.
[36] The appellant points to the following factors the trial judge relied on in arriving at a conviction on that charge:
• the manner of driving which included speeding and swerving for no apparent reason;
• the serious and unexplained collision which involved Mr. Chevolleau flipping his vehicle onto a concrete guardrail, landing on its side;
• the odour of alcohol on Mr. Chevolleau’s breath, which was detected by Officer Choe throughout the entire 2½-hour period from the initial encounter to his release from the detachment and was also detected by Officer Poynter during the breath testing;
• the redness and glassy appearance of Mr. Chevolleau’s eyes where there was no evidence to suggest a medical or other cause for their appearance and;
• Mr. Chevolleau’s admission to the breath technician, the voluntariness of which was conceded by the defence, that he consumed alcohol.
[37] The appellant submits that the first two factors above are collectively a single transaction that can be described as ‘bad driving’. The other items listed by the trial judge, the appellant submits, are indicia of alcohol consumption, not impairment.
[38] Alcohol consumption combined with bad driving, the appellant argues, does not necessarily equate to impaired driving. It is possible for a person to have less than the legal limit of alcohol in their system but their ability to drive still be impaired. The opposite can also be true. It follows in his view that the Crown adduced no evidence that correlates alcohol consumption to a person’s ability to operate a motor vehicle.
[39] The appellant argues that as a result, the trial judge improperly found that Mr. Chevolleau’s ability to drive was impaired by alcohol.
[40] I also agree with the respondent’s position on this ground of appeal.
[41] I accept that the appellant’s argument amounts to simply a bare submission that the driving relied upon by the trial judge could also be characterized as bad driving. The argument is that the Crown did not adduce any evidence to correlate the level of alcohol consumption based on the Intoxilyzer readings to the level of impairment in driving a motor vehicle.
[42] The respondent correctly cited the principle set by Supreme Court of Canada in R. v. Stellato. That case addressed the relationship between alcohol consumption and impairment. The court observed that it is not simply a degree of general impairment, but rather whether the accused’s ability to drive is impaired and that the impairment is caused by alcohol or a drug: [R. v. Stellato, [1994] 2 S.C.R. (S.C.C.)].
[43] I agree with the respondent that the appellant’s position falls short of identifying an error of law or a miscarriage of justice in the trial judge’s determination that Mr. Chevolleau was driving impaired. Judicial authority makes it clear that when a trial judge makes a finding of fact based on the evidence, unless the finding is unreasonable, improper or as a result of a miscarriage of justice, appellate interference is unwarranted. An appellate court cannot simply substitute different findings of fact to favour a different result.
[44] The trial court found as a fact that the bad driving was solely a result of Mr. Chevolleau’s impairment. She did not accept Mr. Chevolleau’s evidence that he was just sleepy. No evidence was adduced to suggest Mr. Chevolleau was simply a bad driver. Those findings were open to the trial judge on the evidence.
[45] Overall, the trial judge attended to the important evidence. Trial judges in driving cases are in the best position to assess the evidence of civilian and police witnesses. The trial judge considered Ms. Shokri’s first-hand close observations of Mr. Chevolleau’s high speed and swerving manoeuvres as he cut her off and flipped over in front of her vehicle. She accepted Officer Choe’s observation of the odour of alcohol and the glassy red appearance of Mr. Chevolleau’s eyes. She accepted the results of the breath tests and took into account that Mr. Chevolleau still had an odour of alcohol on his breath even as he was being released from the police station. The trial judge made what I accept are reasonable findings on impairment that were open to her on the facts.
[46] The trial judge’s reasoning and analysis demonstrated an alertness to the relevant law, evidence and issues in the case. I find no palpable overriding error. There is no basis for appellate intervention.
DISPOSITION
[47] I would dismiss the appeal on both convictions.
B.A. Allen J.
Released: September 29, 2020
COURT FILE NO.: CR-20-10000031-00AP
DATE: 20200929
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MATTHEW CHEVOLLEAU
Appellant
REASONS FOR judgment
(On a Summary Conviction Appeal)
B.A. Allen J.
Released: September 29,2020