COURT FILE NO.: SCA (P) 158/20 DATE: 2021 02 23
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN Peter Maund, for the Crown Respondent
- and -
RAVINDER SINGH Douglas Lent, for the Appellant Appellant
HEARD: January 29, 2021
REASONS FOR JUDGMENT
[On appeal from the conviction and sentence entered by Justice K.A. Wells of the Ontario Court of Justice on October 22, 2019]
F. Dawson J.
[1] The appellant was charged with care and control of a motor vehicle while impaired and with “over 80”. He was found guilty of both offences by Justice K. A. Wells of the Ontario Court of Justice. Justice Wells entered a conviction on the impaired care and control charge and imposed a stay of proceedings on the over 80 offence on the basis of the rule against multiple convictions. She imposed a $1,500 fine and an 18-month driving prohibition. The appeal is from the conviction on the impaired charge and the finding of guilt on the over 80 charge. The sentence appeal is limited to the length of the driving prohibition.
[2] The issues raised on appeal are the same issues that were raised and rejected at the trial; the trial judge having first made relevant findings of fact.
Factual Background
[3] On July 27, 2018 the appellant was found passed out in the driver’s seat of a white Acura motor vehicle. The vehicle was sitting in a live lane of traffic at an intersection controlled by automatic traffic signals.
[4] A civilian witness, Simran Rehal, testified that she and her brother were passengers in a vehicle driven by her sister, which pulled up behind the white Acura at a red traffic light. When the light changed to green the white Acura remained stationary although it was running. After the light changed to red and then back to green again, Ms. Rehal’s sister drove around the Acura. At that point, Ms. Rehal saw that the driver’s head was resting on the steering wheel. Ms. Rehal, or others in her vehicle, called 911. They then pulled over to await emergency responders.
[5] James Stargratt drove his tow truck to the scene after he overheard a call about the situation while monitoring police radio frequencies. The call he heard was for a person slumped over the steering wheel. Mr. Stargratt arrived before emergency responders. He found that the appellant was unconscious in the driver’s seat. The vehicle was running and in drive. The appellant’s foot was on the brake. Mr. Stargratt placed the car in park just as ambulance attendants and firefighters arrived. Mr. Stargratt said that the appellant regained consciousness but remained drowsy and did not know what was going on.
[6] Cst. Rajvir Ghuman of the Peel Regional Police received a dispatch at 10:35 p.m. and arrived on scene at 10:38 p.m. He observed the appellant in the driver’s seat of the Acura being medically assessed by the ambulance crew. Cst. Ghuman spoke briefly to a civilian witness and then attended at the driver’s door of the Acura. He testified that the appellant was awake but disoriented and drowsy. The officer detected a strong odour of alcohol coming from the appellant’s breath.
[7] Cst. Ghuman testified that at that point he asked the appellant what had happened. While he could not recall and did not make a note of the appellant’s response, Cst. Ghuman did note that the appellant’s speech was slurred and very slow. He also noted that the appellant’s face was flushed. At that point Cst. Ghuman told the appellant to step out of the car. He then arrested the appellant for impaired care and control.
[8] Cst. Ghuman testified that between 10:48 and 10:51 p.m. he provided the appellant with rights to counsel and cautions. At 10:55 p.m. he read the appellant a breath demand and left the scene with the appellant for 22 Division, where he arrived at 11:07 p.m.
[9] Prior to heading to 22 Division Cst. Ghuman was in communication with Cst. Eric Passmore, the qualified breath technician who would later administer breath tests to the appellant.
[10] Cst. Ghuman said that after arriving at 22 Division he left a voicemail for duty counsel at 11:13 p.m. He received a call back and said the appellant spoke with duty counsel from 11:22 to 11:27 p.m. From 11:18 to 11:28 p.m. Cst. Ghuman met with Cst. Passmore to brief Passmore on his grounds for the arrest and breath demand. At 11:31 p.m. Cst. Ghuman turned custody of the appellant over to Cst. Passmore in the breath test room. Cst. Ghuman remained in the breath room. He resumed custody of the appellant at 12:07 a.m. on July 28, 2018. The appellant was released from police custody after he was served with documents.
[11] Cst. Passmore testified that he was a qualified breath technician. He arrived at 22 Division at 11:01 p.m. and began preparation for the breath tests. He testified as to the grounds he received from Cst. Ghuman when he met with Ghuman at 11:29 p.m. Cst. Passmore testified that he administered the first breath test to the appellant at 11:39 p.m. and received a reading of 195 mgs. of alcohol in 100 ml. of blood. The second test was administered at 12:01 a.m. and gave a reading of 192 mgs. of alcohol in 100 ml. of blood.
[12] Cst. Passmore said that he noticed that the appellant had a slight odour of alcohol on his breath, that the tops of the appellant’s cheeks were flushed, that his eyes were red rimmed and blood shot, that his speech was slurred and that he was a little sleepy.
[13] The appellant did not testify or call any evidence. Written arguments were filed for the trial judge’s assistance. The trial judge later gave thorough and well-organized reasons for judgment.
[14] Substantially the same arguments are made again on the appeal. I will deal with each submission in the order they were presented.
Did the trial judge err in concluding that Cst. Ghuman had reasonable grounds to arrest the appellant and demand that he provide samples of his breath?
[15] The appellant submits that at the time of the arrest and breath demand Cst. Ghuman did not have reasonable grounds to believe that the appellant had committed the offences he was charged with within the proceeding three-hour period, as required by s. 254(3) of the Criminal Code. Therefore, he submits that he was arbitrarily detained in contravention of s. 9 of the Charter and subjected to an illegal search (the breath tests) in contravention of s. 8 of the Charter. Emphasizing that the onus is on the Crown to establish the reasonableness of the warrantless search, he also submits that all the incriminatory evidence gathered as a result of these alleged Charter violations should be excluded pursuant to s. 24(2) of the Charter.
[16] The success of these Charter arguments is dependent on the success of an underlying submission that the appellant had demonstrated in cross-examination that Cst. Ghuman had no current recollection of the salient events. The submission was made to the trial judge, and repeated on the appeal, that Cst. Ghuman’s evidence that the appellant exhibited indicia of impairment which gave rise to the reasonable grounds for the arrest and breath demand amounted to “past recollection recorded”, rather than evidence flowing from a memory which was permissibly refreshed by the officer referring to his notes. As the Crown had not brought an application to admit Cst. Ghuman’s evidence as past recollection recorded, it is submitted that the trial judge erred in considering Cst. Ghuman’s evidence of the indicia of impairment which he relied upon to arrest the appellant and demand samples of his breath. The appellant cites R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, in support of this argument.
[17] I am unable to accept these submissions for two main reasons. First, the trial judge made findings of fact that are squarely against the submission that Cst. Ghuman did not have a present recollection which could be refreshed. Those factual findings are subject to deference and must stand in the absence of the appellant demonstrating that they are the result of palpable and overriding error. It is well recognized that a trial judge enjoys a significant advantage in that he or she has seen the witnesses and is in the best position to assess the credibility and reliability of evidence and make findings of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-14; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 54; R. v. C.R., 2010 ONCA 176, at para. 31.
[18] Second, in the circumstances of this case, the submission misconstrues the significance of the distinction between refreshing memory and past recollection recorded. The submission also seeks to apply Fliss without regard to a significant distinguishing feature of that case.
[19] Turning first to the trial judge’s findings of fact, the trial judge found that Cst. Ghuman did have a present memory which could be refreshed by reference to his notes. This finding was based on a significant amount of evidence.
[20] When Cst. Ghuman began to testify he was advised that trial counsel had agreed in advance that the officer could look at his notes to refresh his memory. In examination-in-chief Cst. Ghuman explained that before the arrest he was certain that the appellant exhibited slurred speech. However, he could not recall what the appellant was saying when he made that observation. This prompted cross-examination of the officer more generally about the extent of his recollection of the indicia of impairment. Based on that cross-examination, portions of which the trial judge quoted in her reasons for judgment, the appellant advanced the argument on past recollection outlined above.
[21] In rejecting the argument, the trial judge found that many of the questions asked on this topic in cross-examination were long and convoluted. The trial judge also commented in her reasons for judgment that Cst. Ghuman “appeared visibly perplexed” by the questions on several occasions.
[22] On the appeal it is submitted that the trial judge’s finding that Cst. Ghuman was confused is unreasonable because the officer never said that he was confused. I reject this submission. As the authorities already cited recognize, a trial judge has the advantage of being able to see and hear the witnesses. Consideration of the demeanour of a witness is within the purview of the trial judge. The trial judge was in a good position to make the assessment that she did. A review of the transcript of the relevant cross-examination confirms that many of the questions asked were indeed long and convoluted.
[23] The re-examination of Cst. Ghuman, which the trial judge specifically relied upon, also supports that the officer was perplexed or confused by the cross-examination. In re-examination he clearly stated that he had a present recollection of the observations he made and relied upon to arrest the appellant and make a breath sample demand. The trial judge was entitled to rely on this evidence, which fully supported her conclusion.
[24] On the appeal counsel submits that the re-examination “should have been given little or no weight”. The weight to be given to evidence is for the trial judge. I also observe that counsel for the appellant at trial (not Mr. Lent) made no objection to the questions posed in re-examination. Given the lengthy and somewhat convoluted questions asked in cross-examination, and the trial judge’s observation that Cst. Ghuman was perplexed by them, the re-examination was entirely appropriate.
[25] While what I have said so far is sufficient to dispose of this ground of appeal, I will also comment briefly on the significance of the distinction between refreshed memory and past recollection recorded.
[26] The appellant’s submission proceeds on the misguided assumption that if the evidence of Cst. Ghuman concerning the indicia of impairment he relied upon fell under the category of past recollection recorded, it was therefore inadmissible in this case. In the circumstances here I do not agree. Evidence in the category of past recollection recorded is not presumptively inadmissible. Provided the witness is able to say that they are testifying from an accurate record made by them at or near the time of the event, or from a record made by someone else about events the witness observed and which account the witness verified when the observations were fresh in their own memory, the recorded past recollection may be elicited. See: Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis, 2014), at pp. 1143-1145. Based on a review of the record in this case these requirements were met.
[27] While in the case of a refreshed memory the evidence is from the witness, in the case of a past recollection recorded the evidence is from the recording. In a case such as this the effect is the same. Either way, there would be evidence before the trial judge that at the relevant time the witness made certain observations. Here those observations were of indicia of impairment by alcohol which the trial judge found to be sufficient to satisfy the requirements for a valid arrest and breath demand.
[28] The appellant cites Fliss in support of his submission that evidence based on past recollection recorded would be inadmissible in this case. In Fliss the court held that a police officer could not provide evidence of those things for which he had no present recollection through the doctrine of past recollection recorded. However, the distinguishing circumstance in that case was that the record the witness needed to refer to was a surreptitiously recorded statement, which had been ruled inadmissible based on a Charter violation. To the extent the witness had a present recollection of the statement, he was permitted to refresh his memory from a transcript of the inadmissible statement. But where he had no independent recollection, he could not introduce the past recollection recorded because it flowed from the excluded recording.
[29] The circumstances in this case are far different than in Fliss. Fliss does not render inadmissible any relevant past recollection recorded in Cst. Ghuman’s notes.
[30] I now turn back to the appellant’s overarching submission that the trial judge erred in concluding that there were reasonable grounds for the arrest and breath demand. It is uncontroversial that reasonable grounds have both a subjective and an objective component. At trial defence counsel conceded that Cst. Ghuman subjectively formed grounds for the arrest and making of the breath demand. In these circumstances it is not open to the appellant to relitigate that issue, particularly because there was ample evidence adduced at trial to support a conclusion that such grounds were formed.
[31] That leaves the question of whether those grounds were objectively reasonable and sufficient to meet the standard of reasonable grounds to believe. The appellant submits that they were not and that the trial judge erred in finding otherwise.
[32] The appellant submits that prior to the arrest all the officer had to go on was a strong odour of alcohol on the appellant’s breath, slurred speech and a slow response time. He submits that this was not enough.
[33] He also submits that the trial judge misapprehended the evidence in finding that Cst. Ghuman said the appellant also had a flushed face. The appellant is incorrect. Cst. Ghuman added that to his evidence in cross-examination.
[34] The trial judge also considered, erroneously in the appellant’s submission, that the officer had more information by virtue of having received a dispatch to the call. I observe that the tow truck operator testified that he overheard the police radio dispatch for a driver slumped over the steering wheel. In combination with Cst. Ghuman’s testimony that he was dispatched, it was open to the trial judge to infer that Cst. Ghuman had that information.
[35] Cst. Ghuman also spoke to a witness at the scene prior to first speaking to the appellant. The identity of the witness did not become part of the evidence. The appellant submits that the trial judge erred in drawing an inference that Cst. Ghuman would have gleaned information relevant to his grounds from that interaction as well. Again, I disagree. There is evidence that the appellant was seen slumped over the steering wheel in a live lane of traffic with the engine of the car running. Any witness at the scene who had waited for the police to arrive would have seen that. In the circumstances it was open to the trial judge to draw that inference.
[36] In addition, and of significance, Cst. Ghuman and Cst. Passmore both gave evidence about the grounds which Cst. Ghuman conveyed to Cst. Passmore in the breath room. I agree with the respondent’s submission that Cst. Passmore’s evidence about what Cst. Ghuman told him concerning his grounds is admissible as an exception to the hearsay rule to demonstrate Cst. Ghuman’s state of mind at the relevant time: R. v. Smith, [1992] S.C.J. No. 74, at paras. 22-25; R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40, at para. 63. That evidence included that Cst. Ghuman was advised upon arrival at the scene that the appellant’s vehicle had been running and in drive but had been placed into park and turned off before the officer arrived. It also contained a number of other relevant observations.
[37] In her reasons the trial judge carefully and correctly stated the test for reasonable grounds to believe. She instructed herself that there was both a subjective and an objective component to reasonable grounds. She carefully outlined the nature of the assessment to be made and cited two leading authorities.
[38] I agree with the respondent’s submission that, based on the factual findings of the trial judge which were open to her on the evidence, Cst. Ghuman had the following information in mind when he formulated his grounds:
(1) The appellant had been observed by others to be passed out and slumped over the steering wheel of a running car in a live lane of traffic; (2) The appellant had a strong odour of alcohol on his breath; (3) The appellant’s speech was slurred; (4) The appellant’s face was flushed; (5) The appellant was disoriented and drowsy; (6) The appellant’s response time was very slow.
[39] The trial judge’s conclusion that reasonable grounds existed for both the arrest and the breath demand was well supported on this record. Given the trial judge’s findings of fact, a decision the other way would have been unreasonable.
[40] This ground of appeal fails.
Did the trial judge err in concluding that there was no violation of s. 10(b) of the Charter in relation to the police failing to facilitate the appellant’s access to his own lawyer rather than duty counsel?
[41] This issue arose unexpectedly at the trial. The appellant had filed an application alleging a s. 10(b) violation on another basis prior to trial and moved to amend it to add this ground once the issue arose.
[42] In examination-in-chief Cst. Ghuman went through the details of the rights to counsel which he read to the appellant upon arrest. He testified that at the end of doing so, at 10:50 p.m. he asked the appellant, “Do you wish to call a lawyer now?” to which the appellant responded “yes”. Cst. Ghuman was then asked whether the appellant indicated which lawyer he wanted to speak to. Cst. Ghuman said that he did not. Cst. Ghuman was then asked why he phoned duty counsel. The officer replied that duty counsel was a “last resort” if an arrestee does not “have any lawyer”. Cst. Ghuman said the appellant was agreeable to speaking with duty counsel.
[43] In cross-examination Cst. Ghuman was asked if he had any discussion with the appellant about whether he had his own lawyer. The officer replied: “If he had his own lawyer, I would have made notes on that, ‘cause that would have been very important to me.” It was at this point, for the first time, that Cst. Ghuman said that in response to being asked if he wanted to speak to a lawyer the appellant said, “I want my lawyer, yes”.
[44] Cst. Ghuman was then cross-examined about whether he followed up by making further inquiries of the appellant as to whether he had a lawyer or had any specific lawyer in mind whom he wanted to contact. The officer’s response was that he had no other notes and no recollection of doing that. He added, however, that “something must have happened” which led to a call being placed to duty counsel. It was after this exchange that defence counsel at trial obtained permission to add an additional issue to his Charter application. The officer was excluded from the courtroom when that amendment was made.
[45] In re-examination on this point, Cst. Ghuman said that by using the words “my lawyer” he understood the appellant to be referring to his “personal lawyer”. He said that if the appellant would have given the name of a lawyer, he would have written it down and then he would have tried to contact that lawyer. Asked how he would have done that he said, “We have a book for lawyers. Would have went through that or tried Googling it.” He did not remember the appellant asking to look at any directory or phone book or asking for any means of searching for a lawyer of choice.
[46] The appellant argued at trial that the implementational component of his s. 10(b) right to counsel was violated because the police failed to follow up or take any reasonable steps to assist him in contacting his own lawyer. Crown counsel at trial submitted that the appellant had failed to meet his onus to establish a breach. Crown counsel emphasized that there was no testimony that the appellant ever requested to speak to a particular lawyer and that, on balance, the evidence available supported a conclusion that the appellant willingly chose to speak to duty counsel.
[47] The trial judge found that Cst. Ghuman was a credible and reliable witness. She accepted his evidence that, had the appellant ever provided a lawyer’s name, he would have written it down and taken steps to put the appellant in touch with that lawyer. She also accepted the officer’s evidence that he saw duty counsel as a last resort and that something must have happened which led to a call being placed to duty counsel. After making these factual findings the trial judge concluded that the appellant had not discharged his onus to establish a Charter violation on a balance of probabilities. She held that “there is simply an absence of evidence from which I could conclude that there was a s. 10(b) infringement …”
[48] Counsel for the appellant now submits that once the trial judge acknowledged that the appellant said “I want my lawyer”, it was incumbent on the police to facilitate that request and to hold off gathering evidence until the appellant was put in touch with his lawyer or waived his initial request. Counsel submits that the trial judge erred because she failed to recognize “that once [the appellant] asks for his own lawyer the onus shifts to the Crown to show waiver”. The appellant emphasizes the high threshold that must be met to establish such a waiver.
[49] Based on this formulization, the appellant contends that the trial judge erred in law by placing the burden on the appellant. The submission continues that the trial judge erred because she did not recognize that after the appellant said he wanted his own lawyer the police had an obligation to clarify and follow up. As the evidence is clear that Cst. Ghuman had no recollection of doing so, the trial judge necessarily erred in deciding as she did. In making these submissions the appellant relies heavily on R. v. Ross, [1989] 1 S.C.R. 3, at paras. 13-15.
[50] In my view, the appellant overlooks the significance of the trial judge’s findings of fact outlined above and fails to take into account that the shift in onus emphasized in his submissions only arises where a detainee has been reasonably diligent in asserting their right to counsel. The reasonable diligence requirement must be satisfied before the implementational obligations the appellant relies on are activated: Ross, at para. 13; R. v. Bartle, [1994] 3 S.C.R. 173, at para. 18. Waiver does not become an issue in the absence of a detainee being reasonably diligent in his or her assertion of their right to counsel of choice: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 439, at paras. 32, 35.
[51] While the trial judge did not by precise language express that she was not satisfied that the appellant had been diligent in asserting his right to receive advice from his personal lawyer, her factual findings, made in the course of responding to the similar arguments advanced by the appellant at trial, speak to that issue. The trial judge effectively found that the appellant did not put forward the name of a specific lawyer, because she found as a fact that if he had Cst. Ghuman would have made a note of it and taken reasonable steps to contact that lawyer. Equally, she accepted that Cst. Ghuman saw the use of duty counsel as a last resort and that he would not have contacted duty counsel unless there was a good reason to do so. There was no evidence before her that the appellant expressed dissatisfaction with duty counsel.
[52] Moreover, there was no affirmative evidence of due diligence on the part of the appellant. I observe that at no point did the trial judge suggest that the alleged s. 10(b) violation required the appellant to testify. She understood that there was a live issue before her, but in the face of her acceptance of Cst. Ghuman’s evidence, she was effectively finding that she was not persuaded that the appellant had been diligent in pursuing a desire to speak to a particular lawyer. I would add that there is no evidence in the record to support a submission that the police steered the appellant towards duty counsel.
[53] In R. v. Van Binnendyk, 2007 ONCA 537, at para. 9, the court stated: “The detained or arrested person who is offered the opportunity to contact counsel and asserts his right to a ‘particular counsel’ must, however, exercise that right diligently.” At para. 11 of the same case the court addressed an appellant’s onus to prove on a balance of probabilities that their s. 10(b) rights had been violated. The court commented: “In discharging that onus, the appellant had to prove as well that he acted with reasonable diligence in the exercise of his right to choose counsel.”
[54] The Van Binnendyk court relied on R. v. Richfield, [2003] O.J. No. 3230 (C.A.). In Richfield, at para. 12, the court said: “The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier [to contact counsel of choice] does not detract from the appellant’s own lack of due diligence at a later stage in exercising his right to counsel.”
[55] In view of the trial judge’s factual findings, which were reasonable and supported by the evidence, her conclusion that the appellant failed to discharge his onus to demonstrate a s. 10(b) violation was also reasonable and reflects no legal error.
[56] This ground of appeal fails.
Did the trial judge err in failing to find that the police had failed to facilitate the appellant’s access to counsel when they did not provide him with further access to counsel after he stated that he did not remember what duty counsel told him?
[57] This issue arose out of an exchange between the appellant and Cst. Passmore shortly after the appellant was brought into the breath room at 11:31 p.m. It is captured on an audio and video recording of what transpired in the breath room. I have reviewed the relevant portion of that video, which was made Exhibit 3 at the trial.
[58] The trial judge accurately reviewed the details shown on the breath room video when dealing with this issue in her reasons for judgment. She mentioned that at the outset the appellant told Cst. Passmore that he did not know why he was in custody. He also said he did not remember Cst. Ghuman giving him his rights to counsel at the scene. The appellant confirmed that he had spoken to duty counsel but when he was asked if he remembered what duty counsel told him, he said that he did not. However, when Cst. Passmore followed up with further questions, the appellant said that he understood what duty counsel told him.
[59] While not specifically mentioned in the trial judge’s reasons, the video reveals that Cst. Passmore in fact asked the appellant three times whether he understood what the lawyer had told him. First, he asked if the appellant understood the legal advice he had received. The appellant said that he did. The officer then asked the appellant if he was “sure”. The appellant said yes. Cst. Passmore then referred again to “the conversation you had with the lawyer” and asked if the appellant had understood it. The appellant again said yes.
[60] At that point, Cst. Ghuman, who was also in the breath room, offered to provide Punjabi translation if requested by the appellant. The appellant then confirmed that he was “fine” with English.
[61] At trial it was argued that once the appellant said he did not remember speaking with duty counsel, it was incumbent on the police to take some further action to facilitate the appellant’s access to legal counsel. In her reasons the trial judge referred to Cst. Passmore’s testimony that he was initially perplexed by the appellant saying he did not remember what duty counsel said, but also that he went on to confirm that the appellant understood and was satisfied with the legal advice he had received. She accepted Cst. Passmore’s testimony that if he had not been so satisfied, he would have arranged for a further call to counsel. The trial judge also found that the appellant at no time indicated dissatisfaction with the legal advice he received or that he wanted to speak to a lawyer again.
[62] The trial judge reviewed the legal principles that apply regarding the informational and implementational components of s. 10(b) of the Charter. She cited para. 42 of Willier, after noting that the police are under no obligation to ensure that a detainee is satisfied with the legal advice received and should not inquire about the nature or quality of the advice. She then said the following:
One of the realities of dealing with detainees who are impaired by alcohol and/or drugs, is that their ability to both recollect and to answer questions logically and coherently will often be compromised depending on their level of intoxication. Although Mr. Singh initially said he didn’t remember the legal advice he received, he subsequently confirmed he understood what the lawyer had told him.
In my view, the police did everything that was necessary to ensure Mr. Singh was afforded his 10(b) rights and had a reasonable opportunity to exercise them. There is no obligation on police to ensure a person remembers everything they were told by counsel. The application for Charter relief on this basis is dismissed.
[63] Although no issue is taken with the trial judge’s recitation of the legal principles involved, the appellant submits that the trial judge erred in not recognizing that further implementational obligations arose once the appellant said he did not recall speaking to duty counsel.
[64] Once again, in my view, the issue turns on a finding of fact made by the trial judge. She found as a fact that the appellant subsequently confirmed that he understood what the lawyer had told him. That is well supported by the evidence. As previously mentioned, Cst. Passmore asked the appellant in three different ways whether he understood the legal advice he had received and each time the appellant said that he did. The trial judge also noted that the appellant did not express dissatisfaction with the advice or make a further request to speak to a lawyer. Those are additional circumstances which also support the trial judge’s conclusion that the appellant had received legal advice and that he understood it.
[65] This ground of appeal also fails.
Did the trial judge err in concluding that the evidence proved beyond a reasonable doubt that the appellant’s ability to operate a motor vehicle was impaired by alcohol?
[66] The appellant submits that the trial judge erred in two respects in concluding that the impairment requirement of the care and control charge had been proven beyond a reasonable doubt. First, he submits that the trial judge’s reasons reflect that she failed to “be careful not to assume that, where a person’s functional ability is affected in some respect by the consumption of alcohol, his or her ability to drive is also automatically impaired”. The quoted words are taken from R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (C.A.), at para. 16, and are in reference to the application of the principle in R. v. Stellato, [1993] O.J. No. 18 (C.A.); aff’d , [1994] S.C.J. 51. Stellato holds that the impairment element of the offences of impaired driving and impaired care and control are established by proof of any degree of impairment of the ability to drive.
[67] Second, the appellant submits that the trial judge erred by using the Intoxilizer readings as some evidence of impairment, without the assistance of any expert testimony.
[68] I am of the view that there is no merit in these submissions. The trial judge made express reference to the requirement that the Crown prove beyond a reasonable doubt that the accused’s “ability to drive” be impaired by alcohol at both the beginning and the ending of the portion of her reasons that deal with this issue. She accurately described the Stellato standard for proof of impairment.
[69] The appellant focused particularly on one sentence of the trial judge’s reasons to make his point. The trial judge said: “In my view, passing out at the wheel of a vehicle in drive in a live lane of traffic represents the sine qua non of impaired driving.” A sine qua non may be defined as an indispensable requisite or condition. It is perfectly apparent from a reading of the trial judge’s reasons that this is not what she meant. Perhaps she had in mind res ipsa loquitur, the thing speaks for itself. Based on a reading of the trial judge’s reasons as a whole, it is very clear that she considered the appellant being passed out at the wheel as but one of several factors which she determined cumulatively lead to a factual finding beyond a reasonable doubt that the appellant’s ability to drive was impaired by alcohol. The other factors included the observations of Cst. Ghuman that led to his decision to arrest the appellant.
[70] The trial judge also considered that the appellant’s blood alcohol concentration was more than two times the legal limit. What is important to recognize, is that she took that into account as only one factor amongst many others in determining that the appellant’s ability to operate a motor vehicle was impaired by alcohol. I point out that the Intoxilizer readings confirmed that the appellant had been consuming significant amounts of alcohol. That was a relevant factor for the trial judge to consider in determining whether his ability to drive was impaired by that very substance. This is not a situation in which a trial judge relied on high breath test results to infer impairment in the absence of other evidence of impairment and without the benefit of expert evidence.
[71] The evidence capable of supporting a finding of impairment of the appellant’s ability to drive by the consumption of alcohol was significant. The trial judge’s factual determination on this point was reasonable and well supported by the evidence. No legal error or palpable and overriding factual error has been demonstrated.
[72] This ground of appeal fails.
Other Grounds of Appeal Against Conviction
[73] In his written material the appellant alleged an error relating to proof of the suitability of the alcohol standard solution used by Cst. Passmore in conducting the breath tests. That ground of appeal was abandoned in oral argument.
The Sentence Appeal
[74] The appellant included a sentence appeal in his Notice of Appeal but did not address the sentence appeal in his factum. While I have been provided with the trial judge’s reasons for sentence, the appellant did not provide a transcript of the submissions on sentence made at the trial. In order to advance the sentence appeal counsel referred to the affidavit material filed on an application to stay the fine and driving prohibition pending this appeal. That material sets out the appellant’s circumstances. Counsel for the respondent expressed no objection to this approach.
[75] The appeal against sentence is limited to a consideration of the length of the driving prohibition that was imposed pursuant to s. 259 of the Criminal Code. Section 259, since repealed but which applied at the time, mandated a prohibition of not less than one year and not more than three years, upon a first conviction for a drinking and driving offence.
[76] The trial judge imposed an 18-month driving prohibition. She did so having regard to what she considered to be a high level of impairment and the degree of danger the appellant’s actions posed to the community.
[77] The appellant submits that the usual driving prohibition for a first offence impaired care and control conviction is one year. He submits that the increased period of prohibition in this case works an unusual hardship upon him because he is a truck driver by profession. The affidavit evidence I have been referred to shows that he has been employed by UK Truck Training Centre as an instructor since September 2019. The appellant is 39 years of age, is married and has two teenaged daughters. He is the primary financial supporter of his family.
[78] It is well settled that a sentence imposed by a trial court is entitled to considerable deference. Absent an error in principle, failure to consider a relevant factor, or overemphasis of an appropriate factor, an appellate court should only vary a sentence if it is shown to be demonstrably unfit: R. v. Lacasse, 2015 SCC 64, at para. 40. Even where an error in principle has been made by the sentencing judge, an appellate court is only justified in intervening where it is shown that the error had an impact on the sentence imposed.
[79] No error in principle has been made out in this case. The appellant is really submitting that the sentence is demonstrably unfit because it has a harsh impact on his ability to support his family.
[80] The trial judge expressed in her reasons for sentence that it was just by virtue of luck that someone was not seriously hurt in this case. It is difficult to take issue with that. If the appellant’s foot had slipped off the brake pedal while he was unconscious, his vehicle would likely have moved out into the cross lanes of traffic at a busy intersection, which may well have been proceeding at speed on a green light. The trial judge expressed that she understood the impact the driving prohibition would have on the appellant’s employment but felt that the need for specific and general deterrence required a longer than normal driving prohibition in this case. Given the danger created by the appellant’s actions and the well-known harm caused by impaired drivers, an increase in the driving prohibition to the midpoint of the range prescribed by Parliament is entirely reasonable. Deference to the trial judge is required in these circumstances.
[81] The sentence appeal is also dismissed.
Conclusion
[82] The appeal against conviction and sentence is dismissed. The order of this court staying the driving prohibition and fine pending this appeal has now expired. If not already paid, the appellant is granted six months to pay the $1,500 fine imposed by the trial judge.
F. Dawson J. Released: February 23, 2021
