ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
H. Kheir, for the Crown
Respondent
- and -
RAJENDRA LOGARAJAH
A. Thakore, for the Appellant
Appellant
HEARD: July 23, 2021
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice B. Zabel)
1This is an appeal brought by the appellant against conviction imposed on June 18, 2019, by Zabel J. of the Ontario Court of Justice at Hamilton, Ontario.
2Following a multi-day trial, the appellant, Ravendra Logarajah (“Logarajah”) was convicted on charges of obstruct police and “over 80 mg.” care and control of a motor vehicle, contrary to their respective provisions of the Criminal Code.
3In the Notice of Appeal and written materials, the appellant raised various grounds of appeal against conviction. Several grounds of relief found in the Notice of Appeal were not addressed in oral submissions. Fundamentally, Logarajah appeals his convictions on the basis that the trial judge failed to fully consider the merits by summarily dismissing the Charter application, along with the insufficiency of reasons.
Positions of the Parties:
4Mr. Thakore, for the appellant, submits that the trial judge erred in that he failed to explain why he rejected the Charter breaches. More importantly, the trial judge failed to fully address the critical issue of the evidence on this point as required in this case. The trial judge did not permit counsel to make submissions or had already made up his mind on the Charter issues prior to hearing submissions or reviewing the application proper.
5Mr. Thakore submits that the trial judge’s conclusions and reasons were erroneous and insufficient in dealing with breaches of ss. 8, 9 10(b) and 24(2) of the Charter. The trial judge needed to consider and explain why the Charter application was dismissed, invite and hear submissions and failed to provide sufficient reasons. Further, he failed to grapple with the Charter issues and the reasons for the arrest and detention.
6Mr. Kheir, for the Crown, submits the conviction was reasonable, supported by the evidence and free from legal error. His Honour heard submissions on an alleged breach of the appellant’s s. 10 rights during a voluntariness voir dire. After a finding that there had been no breaches, defence counsel notified the trial judge that a Charter application had previously been filed, which was not before court. His Honour received the application and it was agreed that the application would be blended with the trial proper. Defence counsel made no further submissions on the Charter issues during his closing submissions and the trial judge dismissed the application in his judgment.
7The appellant is now appealing on the grounds that his s. 10(b) rights were violated. The respondent submits that the appellant’s s. 10(b) rights were fully complied with and the application lacked an evidentiary foundation. In the face of uncontradicted evidence, uncontroversial legal principles, and counsel’s decision not to make further submissions on the Charter issues, the trial judge’s reasons were sufficient to explain the decision to the parties and permit meaningful appellate review. The reasons for judgment and comments throughout the trial demonstrated that Zabel J. did in fact address the Charter issues.
Evidence at Trial:
8On the evening of July 29, 2017, the appellant was a passenger in Mr. Thavarajah’s vehicle, a blue SUV. While driving on the 403, witnesses observed the SUV swerving into other lanes, fluctuating its speed, and nearly collided with another vehicle. Two witnesses independently called police: Tanner Brimner and April Douwes. Mr. Brimner pulled his vehicle in front of the SUV, engaged his hazard lights, and slowed to a stop forcing the SUV to do the same. Ms. Douwes’ husband, who was driving, pulled up behind the SUV to prevent it from leaving.
9The vehicles stopped in the right lane of traffic, so Mr. Brimner persuaded Mr. Thavarajah to pull over onto the shoulder. The two spoke briefly on the side of the road. Mr. Brimner testified that the appellant and Mr. Thavarajah switched seats and the appellant attempted to drive away but was prevented by Mr. Brimner standing in the way. Ms. Douwes testified that the appellant only entered the driver’s seat after Mr. Thavarajah was prevented from driving away by Mr. Brimner. Both witnesses agreed that the appellant was in the driver’s seat by the time police arrived.
10Detective Constable Robert Conant arrived on scene first. He spoke to Ms. Douwes husband and Mr. Brimner, both of whom told him that the appellant had switched seats with the driver. D.C. Conant approached the vehicle from the passenger’s side to speak to Mr. Thavarajah and the appellant. Within a couple minutes of D.C. Conant’s arrival, Sergeant Skelding arrived on scene. D.C. Conant provided Sgt. Skelding with the information he had received, including the witnesses’ statement that the appellant and the driver had switched seats.
11D.C. Conant testified that he asked for the keys to the vehicle as Sgt. Skelding arrived. However, Sgt. Skelding testified that the SUV was still running when he arrived on scene. He initially approached the driver’s side but then went around to the passenger’s side where D.C. Conant was speaking to Mr. Thavarajah. D.C. Conant had the appellant hand over the keys and arrested Mr. Thavarajah. While D.C. Conant attended to Mr. Thavarajah, Sgt. Skelding returned to speak to the appellant.
12Sgt. Skelding begun by explaining that he was investigating for impaired driving and that he believed that Mr. Thavarajah was driving. He then cautioned the appellant as to the importance of telling the truth and the consequences of obstructing justice. Sgt. Skelding testified that at this point, he believed Mr. Thavarajah to be the original driver and had not formed an opinion as to whether the appellant had been drinking. Sgt. Skelding explained that he cautioned the appellant because the act of switching seats was potentially deceptive. Sgt. Skelding asked the appellant who had been driving the vehicle on the highway. The appellant responded that he had been driving. Sgt. Skelding told the appellant that he knew it was a lie. The appellant maintained that he was the driver and Sgt. Skelding placed him under arrest for obstruction at 11:24 pm.
13While Sgt. Skelding was walking the appellant back to his cruiser, the appellant spit out a piece of gum without being prompted to do so. The officer smelt alcohol on the appellant’s breath and asked him whether he had been drinking. The appellant responded that he had drank 2-2.5 hours prior. Sgt. Skelding read the appellant a roadside breath demand and administered the test. The appellant blew into the device and registered a “fail”. Sgt. Skelding arrested the appellant for the offence of ‘over 80’ at 11:28 pm. The officer read the appellant his rights to counsel and cautioned him on the potential use of any statements made.
14Sgt. Skelding read the appellant a breath demand. The officer took the appellant back to the station and again read him his rights to counsel. After speaking to duty counsel, the appellant provided two breath samples which registered 100 and 90 mg/mL respectively.
Proceedings at Trial:
15The trial occurred over three days: April 11, 12 and May 10, 2019. Sergeant Skelding (“Skelding”) started testifying on the first day of trial. While in the middle of his testimony, a voir dire was commenced on the voluntariness of statements made by the appellant to Skelding and this testimony continued into the second day.
16Counsel for the appellant (not Mr. Thakore) only called the breath technician to testify on the voir dire. Before the technician started testifying, counsel confirmed that the voir dire was only in relation to utterances by the accused at the scene. During his submissions, defence counsel argued that the appellant was detained from the moment the police engaged the appellant and the co-accused and that the appellant’s s. 10 rights were infringed because the right to counsel was not provided until after the roadside breath test had been administered. The trial judge identified the Charter issue raised and indicated he believed no application had been brought. Nevertheless, the Crown posed no objection to addressing the Charter issue.
17At the conclusion of the voir dire, the trial judge found the appellants statements were voluntary and dismissed the Charter application “on the uncontradicted evidence of officer Skelding.” It was only after the trial judge’s decision was rendered that defence counsel informed the court that an application had been filed. The trial judge replied that he had not seen the application and the ruling he had made would not be changed, but he would receive the application to consider with respect to the trial proper. The trial judge then proposed to address the Charter application as blended with the trial and defence counsel agreed.
18On the third day of trial, defence counsel made his closing submissions without any mention of the Charter issue. At the conclusion of the Crown’s closing submissions, Crown counsel (who was a different Crown than at the first two trial dates) inquired whether the Charter application was still a live issue. She indicated her belief that the application was “substantially dealt with” at the previous dates. Defence counsel made no objection or correction.
19Defence counsel went on to make reply submissions without any reference to the Charter issues. The trial judge addressed the Charter application at the end of his reasons for judgment and noted that defence counsel did not make any submissions. His Honour found that there was “no factual basis for the motion at all” and dismissed the application.
Legal Principles:
20Pursuant to s. 686(1)(a) of the Criminal Code, appellate courts can set aside a verdict when (a) the verdict is unreasonable or cannot be supported by the evidence; (b) there was a wrong decision of law; or (c) on any ground where there was a miscarriage of justice. It is settled law that when considering an unreasonable verdict or an error in the trial judge’s overall assessment of the evidence, deference must be afforded. An appellate court is not entitled to re-try the case and substitute its view of the evidence.
21The question is not whether the evidence is capable of raising a reasonable doubt or whether another judge might have convicted the respondent. Rather, the court must thoroughly re-examine, and to an extent at least, conduct a limited re-weighing and consider the effect of the evidence: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. The question is whether the verdict was one that a properly instructed jury or judge acting reasonably could have reached: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168.
22Appellate courts may only interfere with verdicts if they can clearly articulate the basis upon which they conclude that the verdict is “inconsistent with the requirements of a judicial appreciation of the evidence.” Further, in deciding whether or not the trier of fact has exceeded the bounds of reasonableness in the verdict that was reached, an appellate court should show “great deference” to findings of credibility made at trial.
23The test for demonstrating an unreasonable verdict is an exacting one. To succeed, the appellant must demonstrate that the verdict is one that no judge or jury, properly instructed, could reasonably have rendered in the circumstances. A verdict may also be found unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of the finding, or is shown to be incompatible with the evidence that has not otherwise been contradicted or rejected by the trial judge. As held by Doherty J.A. in R. v. Morrisey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) trial judges will commit a reversible error when they fail to take into account evidence that is “relevant to a material issue” at trial:
A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.
In my view, any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial.
If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
24While the standard for establishing a misapprehension of evidence does not require that an appellant demonstrate that a verdict is unsupported by the evidence, the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2, set out the stringent standards for this ground of appeal:
Morrissey, it should be emphasized, describes a stringent standard. The 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. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
Application of the Legal Principles to this Case:
25This appeal essentially turns on an analysis of the trial judge's reasons for judgment in the context of the evidentiary record and the Charter application. I have considered the reasons for judgment as a whole, keeping in mind the purpose for which they were delivered. The trial judge’s reasons were not intended to be, nor have I read them, “as a verbalization of the entire process engaged in by the trial judge in reaching [his] verdict.” (See Morrissey at p. 205.)
A) Sufficiency of Reasons:
26A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is “whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. “An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review”: Dinardo, at para. 25. A failure “to sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18; R. v. Slatter, 2019 ONCA 807 at para. 58. A judge need not review and resolve every inconsistency or respond to every argument advanced by counsel. A.M. at para. 14. However, an accused is entitled to know why the trial judge had no reasonable doubt about his or her guilt: Gagnon, at para. 21.
27In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada elaborated on the general principles to be applied when considering the sufficiency of reasons: Sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the record, the issues, and the submissions of counsel at trial: at para. 37. At a minimum, it is required “that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the [trial] judge has seized the substance of the matter.”: at para. 43. In a case that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt: at para. 50. However, this does not mean that the trial judge is required to enter into a detailed account of the conflicting evidence: at para. 50.
28An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of the facts: at para. 54. The trial judge is in the best position to determine matters of fact, and in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected: at para. 54.
29Thus, an appellate court, proceeding with deference, must ask itself whether the reasons, in their entire context, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached: at para. 55. If the answer to this question is affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law because he or she has failed to reconcile every frailty in the evidence or allude to every relevant principle of law: at para. 56.
30Of course, a trial judge does not have to deal with every aspect of the evidence or express his views on each and every inconsistency in the testimony of a witness whose evidence he ultimately accepts.
31In my opinion, Zabel J. addressed the material issues related to the Charter application. The defence position at trial was confusing. First, the Charter application never reached the trial judge at the outset of trial. It seems that counsel did not address the Charter issues, at least not at the commencement of trial, but until much later in the proceedings. Notwithstanding, there were several opportunities for defence counsel to pose questions to the officers related to the alleged Charter breaches, He failed to do so. There were several unique opportunities for defence counsel to advance arguments on the Charter issues. Again, all but neglected. This, in spite of any preliminary factual findings made by the trial judge during the voir dire and revisited by the Crown in dialogue with the court.
32Moreover, the Charter application was not legally complex and involved questions of fact. The trial judge dealt with those factual issue in his reasons, albeit briefly. Again, it bears repeating that counsel did not raise any issues or advance the application at the relevant times.
33In addressing some of the substantive issues for this appeal, I agree entirely with the Crown’s submissions in its factum regarding the legal application of detention as applied in this case. On these facts, the entire issue is a non-starter. Upon detention, s. 10(b) guarantees everyone the right to speak to counsel and the right to be informed as such without delay. The trial judge correctly found that detention did not crystalize at the outset of the appellant’s interaction with the police.
34The roadside screening provisions of the Code place an implicit limitation on this right. The provision of the rights to counsel may be delayed for the purpose of obtaining a breath sample into a roadside screening device. The limit also applies to “screening measures preceding the demand” which are performed to determine whether reasonable suspicion exists to make the demand in the first place. The permissible screening measures includes asking drivers whether they had been drinking. This limit is constitutionally valid under s. 1 of the Charter: R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640 at 653, 655, R. v. Orbanski; R. v. Elias, 2005 SCC 37 at paras. 41, 49, 52.
35The appellant was arrested for obstruction at 11:24 p.m. He was arrested for impaired operation at 11:28 p.m. and provided his rights to counsel immediately following at 11:29 p.m. The issue is whether the delay 5-minute delay is consistent with the constitutional requirements.
36Skelding’s first course of action after arresting the appellant was to bring him to the cruiser to provide his rights to counsel. However, on the walk to the cruiser, the appellant spit out his gum and Skelding smelt alcohol. The ensuing delay is entirely attributable to the screening measures required of the officer. Skelding inquired if the accused had been drinking and made a roadside breath demand. After six failed attempts to provide a suitable sample, the appellant provided a proper sample which registered a fail on the device. The officer formed grounds to arrest the appellant and promptly did so. He provided the rights to counsel immediately after that.
37Once Skelding smelt alcohol on the appellant’s breath, the constitutionally valid limit on the appellant’s rights to counsel were engaged. Skelding was permitted to undertake reasonable steps to assess the appellant’s sobriety. He could ask the appellant whether he had been drinking. Upon forming the reasonable suspicion required for a roadside demand, the officer was permitted – indeed he was duty-bound – to make a demand and administer the test prior to providing the appellant’s rights to counsel. The factual matrix and jurisprudence provide for no infringement by the 5-minute delay caused by the intervening investigation into impaired operation.
The trial judge’s reasons for denying the Charter application were sufficient
38The sufficiency of reasons does not constitute a free-standing ground of appeal. Similarly, trial judges do not have a free-standing duty to provide reasons in the abstract. The need for reasons arises from the particular circumstances of the case. Reasons must be read as a whole and in the context of the evidence, submissions, and live issues at trial to determine whether the reasons are adequate. Where the trial judge’s decision and its basis are clear from the record, a decision will not be overturned for insufficiency of reasons. The “mere failure to give reasons, without more, does not raise a question of law.” R. v. Sheppard, 2002 SCC 26 at paras. 35-37, 46, R. v. R.E.M., 2008 SCC 51 at para. 38.
39The adequacy of reasons is assessed for factual and legal sufficiency. Factual sufficiency is a “very low bar” requiring only that the judge’s decision and its basis are apparent from the reasons in light of the record. Even where the reasons are deficient, the appellate court can supplement them by considering the evidentiary context. Legal sufficiency requires only that the reasons allow for appellate review. In the absence of controversial points of law, trial judges need not expound on points of law but instead are presumed to know the basic legal principles at issue. Similarly, where the evidence is undisputed and uncontradicted, detailed reasons are less necessary to permit meaningful review: R. v. G.F., 2021 SCC 20 at paras. 71, 74-76, R. v. Kenegarajah, 2018 ONCA 121 at para. 41.
40In Sheppard, at para. 55, the Supreme Court provided the following principles to guide appellate courts in reviewing the sufficiency of reasons:
An accused person should not be left in doubt about why a conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met.
The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.
The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides a ground of appeal.
Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated.
Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of a jury instruction.
Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso.
41I am persuaded that the trial judge’s reasons for dismissing the appellant’s Charter application were legally sufficient. Factual sufficiency is a low bar requiring only that the decision and its basis were apparent. The trial judge ruled that the application was dismissed twice: first following the voir dire and again at the end of his reasons for judgment. His basis for dismissing the application was that it lacked a factual foundation. Following the voir dire, His Honour found that Skelding’s uncontradicted evidence did not disclose a breach.
42Likewise, the reasons were legally sufficient because they allow for a meaningful appellate review in light of the law, facts, and submissions. First, the applicable legal principles are uncontroversial. Whether a breach had occurred turned on whether the appellant was detained at some point before being arrested for obstruction. The legal test is unchanged since Grant/Suberu.
43Second, the evidence relevant to the Charter issues was uncontroversial. Skelding testified that he did not suspect the appellant of any offences until the appellant obstructed justice by lying about driving. He testified that the appellant was not detained prior to the arrest and was free to leave. Nothing in Thavarajah’s or the appellant’s testimonies conflicted with Skelding’s evidence on these points. No relevant questions were posed by defence counsel.
44Third, at the conclusion of the trial, counsel for the appellant did not address the Charter issues in his submissions. I find that there were ample opportunities afforded counsel. Even after the issue was raised by the Crown, -more than once - defence counsel chose not to make submissions on the issue. This is reflective of a decision to focus on the merits of the offences. After the evidence was complete, I agree with the Crown, - but not need decide whether - defence counsel likely recognized that there was little merit to the Charter application and instead made the tactical decision to argue that the offences were not made out on the evidence.
45In light of the evidence, governing legal principles, and submissions of counsel, the trial judge’s reasons for dismissing the Charter application are sufficient. Its clear in the circumstances why the trial judge decided as he did. As held in R.E.M., there is “no rational basis for concluding that the trial judge erred” and so even an absence of reasons would not raise question of law. Even if I am of the view that the trial judge could have said more, it is open to me to more fulsomely articulate why the Charter application was correctly dismissed.
46Lastly, the appellant argues Charter application was not fairly heard contrary to the principle of audi alterem partem. Not so. The appellant made submissions on Charter issues during the voluntariness voir dire. After the trial judge found that there were no Charter breaches, defence counsel alerted the court to the existence of an application which had not reached the trial judge due to an error around rescheduling the trial. Zabel. J. received the application and defence counsel agreed to proceed in a blended fashion. Counsel then chose not to readdress the application in closing submissions or at any other point during the trial. Again, neither relevant questions were posed by counsel to witnesses on this issue nor evidence was raised by the defence. With the benefit of the written application, counsel’s oral submissions on the voir dire and all the evidence at the trial, Zabel J. properly dismissed the application.
47Indeed, if I am in error as to the sufficiency of reasons to constitute an error of law, I agree with the Crown that the appeal ought to be denied and that I apply the curative proviso, under s. 686(1)(b)(iii) of the Criminal Code.
48Finally, I observe that there is no application before me with respect to ineffective assistance of counsel. In my question to appellate counsel during the course of this hearing, this was confirmed to be the case.
Conclusion:
49The brief reasons of the learned trial judge, as a whole, are reasoned as to why the Charter application was dismissed and why the evidence did not leave him with a reasonable doubt. Zabel J. considered the live issues before him as presented by counsel during the course of the trial. The trial judge accepted the testimony of the officers and rejected the defence evidence as it pertained to any alleged Charter breaches. On this record, I do not find an error in regard to the legal principles applied to the facts or insufficiency of reasons.
50The appeal is dismissed.
A.J. Goodman, J.
Released: July 27, 2021
COURT FILE NO.: 19-98 AP
DATE: 2021-07-27
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
RAJENDRA LOGARAJAH
Appellant
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice B. Zabel)
Released: July 27, 2021