COURT FILE NO.: SCA (P) 1696/19
DATE: 2021 09 10
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
A. Mavridis, for the Respondent
Respondent
- and -
DANNY LACHHMAN
A. Gerges, for the Appellant
Appellant
HEARD: July 16, 2021
REASONS FOR JUDGMENT
[On appeal from the Judgment of Amarshi J.
dated May 29, 2019]
DENNISON J.
Overview
[1] An off-duty police officer observed the appellant driving erratically. A video from a dash camera showed the appellant take an exit off Highway 401 and swerve back onto the highway. The appellant swerved between lanes and at one point came close to hitting a concrete barrier. He changed lanes without signalling and put on his brakes for no apparent reason. The officer lost sight of the vehicle, but not before he provided the licence plate number to police. A short time later, police located the appellant’s vehicle straddling the north and south bound ramps connected to Highway 410 and Williams Parkway. The appellant was mumbling and smelled of alcohol. Police arrested the appellant for impaired driving.
[2] The appellant testified he believed he was being followed. He explained his erratic driving was him testing if he was being followed and attempting to evade the driver. He also stated he dropped his phone at one point while driving.
[3] On May 29, 2019, Amarshi J. convicted the appellant of impaired driving, but acquitted the appellant of refusing to provide a breath sample. On July 10, 2019, the appellant was ordered to pay a fine of $1,200.00 and prohibited from driving for twelve months.
[4] The appellant submits that the trial judge did not properly apply the principles of R. v. W. D., 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at p. 758, in convicting the appellant. The appellant submits that the trial judge failed to consider if the appellant’s evidence raised a reasonable doubt. The appellant also submits that the trial judge reversed the onus and failed to address inconsistencies in the officer’s evidence.
[5] For the reasons that follow, the appeal is dismissed.
Summary of Facts
The Appellant’s Driving on the 401
[6] Sunjeet Rangi is a member of the Toronto Police Service. He was off duty on March 11, 2017. He was driving his personal vehicle westbound on Highway 401. His vehicle was equipped with a dash camera that recorded automatically.
[7] At approximately 11:30 p.m., Mr. Rangi observed a Dodge Caravan that had an inoperative rear light. He observed the vehicle swerving within and between lanes. He believed the driver was impaired and followed the vehicle. The vehicle drifted towards the shoulder. He observed the vehicle abruptly change lanes without signalling. Mr. Rangi was approximately ten car lengths behind the appellant’s vehicle.
[8] Mr. Rangi observed the vehicle proceed as if it were going to exit the highway. The vehicle then swerved back onto the highway, driving over the solid white line that divides the exit. The vehicle almost collided with a concrete barrier. Mr. Rangi tried to speed up because he wanted to obtain the license plate.
[9] At that point, it appeared to Mr. Rangi that the appellant noticed him. The appellant switched lanes and then applied his brakes when no other vehicles were around him. Mr. Rangi drove beside the vehicle and observed a male driver wearing a jacket with an American flag on the sleeve. Mr. Rangi passed the vehicle and then the vehicle accelerated, cut him off and sped away. Mr. Rangi estimated that he followed the vehicle for approximately ten minutes before the vehicle sped away and he lost sight of it. Mr. Rangi contacted the police.
[10] The dash camera video was made an exhibit at trial. It showed the appellant’s vehicle swerving within and between lanes, exiting the highway, then crossing back over the white line, braking, and almost hitting a concrete barrier.
The Appellant’s Evidence about being Followed
[11] The appellant testified he started work that day at 6:00 a.m. After work, he met up with a friend in Scarborough and consumed some Jamaican rum while waiting for take-out food.
[12] The appellant believed he was being followed on the 401. He was bothered by this. He took various actions to confirm that he was in fact being followed. He changed lanes and slowed down to see if the vehicle would pass him. He testified that at one point he drove as if he was exiting the highway, but then swerved back to see if the vehicle was following him. He believed he was being followed for about ten to fifteen minutes. He testified he was distracted with his driving because he was looking through his rear-view mirror to see if he was being followed.
[13] The appellant testified he was fiddling with his phone and tried to reach for it when it fell out of his hand. Once the phone fell to the ground, he did not try to retrieve it.
[14] The appellant acknowledged he drives on the aggressive side but denied that alcohol impaired his ability to drive that day.
The Collision and Arrest
[15] The appellant testified the accident occurred because he looked behind him to see if the vehicle was still following him. He paid more attention to what was happening behind him than ahead of him. The appellant testified he accelerated to try and lose the vehicle trailing him, and as he approached Highway 410 and Williams Parkway another vehicle entered his lane and cut him off. He stated that he tried to take evasive action but ended up in the ridge area that separated the off ramp and the through way.
[16] The terrain was snow-covered and slippery. The driver’s door would not open, so the appellant climbed out the vehicle on the passenger side.
[17] P.C. Micallef was the first police officer to arrive on scene. She observed the appellant climbing out of the passenger side of the vehicle. The appellant seemed dazed and did not answer her questions. His speech was a bit mumbled. He sat down. P.C. Rice then arrived on scene. P.C. Micallef and P.C. Rice had a brief conversation about whether they should call an ambulance. The appellant stated he did not require an ambulance. P.C. Rice asked the appellant to stand up, and when the appellant did not do so, P.C. Rice arrested him.
[18] P.C. Rice testified he could detect an odour of alcohol on the appellant’s breath. P.C. Rice explained that when he first saw the appellant,
He was sitting down next to the vehicle. I had a conversation with him asking for his identification. When I noticed his speech was very, very mumbled, he was trying not to look and kept his head down. I was able to see that he had bloodshot eyes and as I got closer, I could smell an odour of alcohol.
[19] In cross-examination, P.C. Rice reaffirmed that the appellant kept his head down. P.C. Rice also testified he leaned over to look at the appellant.
[20] A struggle ensued when P.C. Rice attempted to arrest the appellant. P.C. Lupson arrived on scene and assisted. It was snowy and slippery, and the ground slopped downwards from the roadway. As P.C. Rice stated, “it was not the easiest place to stand”.
[21] P.C. Lupson also observed that the appellant had red-rimmed, bloodshot eyes and a strong odour of alcohol on his breath. P.C. Lupson and P.C. Rice walked the appellant to the police cruiser. The appellant was unsteady on his feet and almost had to be held up.
At the Police Station
[22] P.C. Lupson drove the appellant to the police station. The appellant refused to provide a breath sample. A video of the appellant in the breath room was made an exhibit. In the video, the appellant is belligerent and argumentative. He also appears unfocused and rambling.
Analysis
[23] As recently stated in R. v. G. F., 2021 SCC 20, at para. 68, trial reasons have an important role in the criminal justice system. Trial reasons ensure that “judges are held accountable to the public, ensuring transparency in the adjudicative process and satisfying both the public and the parties that justice has been done”: G. F., at para. 68 per Karakatsanis J., citing R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 42 and 55.
[24] When reviewing a trial judge’s reasons, the reviewing court must take a functional and contextual approach. Appellate courts “must not finely parse the trial judge’s reasons in a search for error”: G. F., at para. 69. The appellate court must read the reasons in context and, as a whole, consider what the live issues were at trial: G. F., at para. 69: see also R. v. Chung, 2020 SCC 8, 443 D.L.R. (4th) 393, at paras. 13 and 33; R. v. R. E. M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25.
[25] The reasons must be both factually and legally sufficient. Karakatsanis J., in G. F., held that legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal. She further explained, at para. 74, that trial judges do not have to cite established principles of criminal law:
A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application — the presumption that “the trial judge understands the basic principles of criminal law at issue in the trial”: R.E.M., at para. 45. As stated in R. v. Burns, [citation omitted], at p. 664, “Trial judges are presumed to know the law with which they work day in and day out”: see also Sheppard, at para. 54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles.
[26] The appellant alleges the trial judge erred in his application of W. D. W. D. deals with the relationship between credibility and standard of proof. Where an accused testifies, the trier of fact does not simply consider which version of events they prefer - that of the accused or the complainant. Rather, the trier of fact must ensure that the burden of proof remains on the Crown. To ensure this, the following principles from W. D., at p. 758, apply:
If the trier of fact believes the accused, the accused must be acquitted.
If the evidence of the accused leaves the trier of fact with a reasonable doubt that the accused committed the offence, the accused must be acquitted.
Only if the trier of fact is satisfied beyond a reasonable doubt, based on the evidence they do accept, that the accused is guilty, then the accused is convicted of the offence.
[27] There is no “magic incantation” that a trial judge must state when applying the test. It is the substance of the test that must be respected when dealing with conflicting versions of events: R. v. S. (W. D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; Dinardo, at para. 23.
The Trial Judge Properly Applied the W. D. Framework
[28] There was no requirement that the trial judge specifically refer to W. D. The principles set out in W. D. are well established and non-controversial: G. F., at para. 74. The issue is whether the trial judge properly applied the principles of W. D. in deciding to convict the appellant. I am satisfied that the trial judge did so.
[29] This was a straight-forward trial. The sole issue was whether the appellant’s ability to operate a motor vehicle was impaired.
[30] The trial judge’s reasons demonstrate that he understood the onus remained on the Crown to prove the offence beyond a reasonable doubt. The trial judge explained that the principles from R. v. Stellato, 1993 CanLII 3375 (ON CA), 1993 ONCA 3375, 78 C.C.C. (3d) 380, applied. In quoting Stellato, at p. 384, the trial judge stated, “The trial judge must be satisfied beyond a reasonable doubt” before the accused can be convicted of impaired driving. The trial judge also quoted, “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”: Stellato, at p. 384. Ultimately, the trial judge found that the Crown met its onus.
[31] I do not find that the trial judge shifted the burden of proof onto the appellant in light of some of his comments, such as, “I did not find it particularly convincing [in] Mr. Lachhman’s evidence that the nature of his poor driving was a result of his efforts to try to engage or test if he was being followed.” When the trial judge’s reasons are read as a whole, it is clear the trial judge rejected the appellant’s evidence that all of the appellant’s poor driving could be explained by the appellant testing if he was being followed. This is not a reversal of the burden of proof.
[32] Contrary to the submission of the appellant, the trial judge meaningfully explained why he rejected the appellant’s evidence. The trial judge found that braking on the 401, to see if the appellant was being followed, was “an odd manoeuvre.” The trial judge also held that the appellant’s swerving within and between lanes “would not account for his aggressive driving habits.” Instead, the trial judge found the appellant’s swerving was a key indicia of impairment. This finding was open to the trial judge to make given the evidence on the dash camera.
[33] The trial judge also rejected the appellant’s explanation that he almost collided with the concrete barrier because he dropped his phone or was momentarily inattentive. The trial judge was entitled to make this credibility assessment.
[34] The trial judge also explained why he did not accept the appellant’s explanation that the odour of alcohol came from a broken bottle of rum in the appellant’s jacket pocket. The trial judge accepted the evidence of P.C. Rice and P.C. Lupson, who both testified the odour of alcohol was coming from the appellant’s breath. P.C. Rice testified that the more he spoke to the appellant, “the more [he] could smell alcohol coming from his breath.” Both officers also noticed the appellant had bloodshot eyes and mumbled when he spoke.
[35] In finding that the appellant was impaired, the trial judge also relied upon the appellant’s behaviour at the police station. The appellant was belligerent and argumentative. The trial judge found that this behaviour was outside the range of normal behaviour. The trial judge further found the appellant’s rambling and lack of focus at the station demonstrated impaired judgment. In fact, these factors contributed to the trial judge acquitting the appellant on his charge of failing to provide a breath sample. The trial judge was left with a reasonable doubt that the appellant intentionally failed to provide the breath sample.
[36] The trial judge concluded that all the above factors support “only one reasonable conclusion,” that the Crown had proven beyond a reasonable doubt that the accused was impaired. The trial judge is presumed to know the basic principles of the law. Implicit in his statement that the evidence only supports one reasonable conclusion, is a finding that the appellant’s evidence did not leave him with a reasonable doubt. When the trial judge’s reasons are read as a whole and in context, the omission of the phrase, “nor does his evidence leave me with a reasonable doubt,” does not demonstrate that the trial judge failed to properly apply the principles of W. D.
[37] The trial judge’s reasons explain why he was satisfied beyond a reasonable doubt that the appellant was guilty of impaired driving. The reasons also permit this court to meaningfully review the decision. There is no basis to find the trial judge did not properly apply the principles of W.D.
The Trial Judge did not err in his Credibility Assessments
[38] The appellant also submits that the trial judge failed to properly assess the credibility of P.C. Rice and P.C. Lupson against the appellant’s evidence regarding what happened at the scene and afterwards. The appellant argues that this constitutes a reversible error under the W. D. framework.
[39] The trial judge’s credibility findings are entitled to a high degree of deference because the trial judge saw and heard witness testimony. Deficiencies in the trial judge’s credibility analysis will “rarely” justify intervention on appeal: Dinardo, at para. 26. However, a failure to sufficiently articulate how credibility concerns were resolved may constitute a reversible error. The focus of review is on whether the trial judge’s reasons explain to the accused “why the trial judge was left with no reasonable doubt”: Dinardo, at para. 26, citing R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 21.
[40] The appellant submits that the trial judge should have considered the inconsistency between P.C. Rice’s evidence and the appellant’s evidence about what happened when P.C. Rice arrived on scene. The appellant testified he was angry because P.C. Rice arrived on scene and stated, “This guy is hammered, I am arresting him.” In contrast, P.C. Rice testified he arrested the appellant after assessing the situation. I do not find that the trial judge was required to address this issue for two reasons.
[41] First, the trial judge did not rely on the appellant’s anger or conduct at the scene as providing indicia of impairment. Any inconsistency as to what happened between the accused and the officer was minor in nature and had no relevance to a finding that the accused was impaired. The trial judge did not rely on the accused’s behavior at the scene as evidence of impairment. In fact, the trial judge accepted the appellant’s unsteadiness on his feet did not indicate impairment, given that he had just been in an accident. The trial judge did, however, rely on the appellant’s aggressive behaviour at the police station, captured by the breath room video, as evidence of impairment.
[42] Second, there was no challenge of P.C. Rice’s grounds to arrest the appellant. Whether P.C. Rice was premature in concluding that the appellant was impaired was of no moment in this case. In any event, there is no set amount of time that must pass before an officer can form reasonable and probable grounds to arrest a person for impaired driving. In this case, there were ample grounds to arrest the appellant.
[43] The appellant also submits that the trial judge was required to assess the veracity of P.C. Rice’s evidence. The appellant argues there is an inconsistency between P.C. Rice observing red bloodshot eyes, slurred speech, and an odour of alcohol, despite testifying that the appellant kept his head down, and was mumbling and not really answering questions.
[44] I do not find that the trial judge was required to specifically address this issue. P.C. Rice testified the appellant was sitting down next to the vehicle. When P.C. Rice had a conversation with the appellant asking for his identification, P.C. Rice stated he noticed the appellant’s speech was very mumbled, and that the accused was trying not to look and kept his head down. The officer testified he leaned over the appellant, and he was able to see that the appellant had bloodshot eyes and could smell an odour of alcohol. While P.C. Micallef did not observe any indicia of impairment, P.C. Lupson arrived on scene shortly thereafter and he too noticed that the appellant was mumbling, had blood shot eyes and an odour of alcohol on his breath. In P.C. Lupson’s opinion, the appellant “was clearly impaired.” I do not find an inconsistency in P.C. Rice’s evidence, and if there was, it was minor considering the other evidence that confirmed P.C. Rice’s observations.
Conclusion
This was an overwhelming case to support a conviction of impaired driving. The appeal is dismissed.
Dennison J.
Released: September 10, 2021
COURT FILE NO.: SCA (P) 1696/19
DATE: 2021 09 10
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DANNY LACHHMAN
Appellant
REASONS FOR JUDGMENT
Dennison J.
Released: September 10, 2021