Court File and Parties

COURT FILE NO.: CR-20-15374-00AP DATE: 20210927 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Darin Brown

BEFORE: Justice C. Boswell

COUNSEL: David Parke for the Crown/Appellant Frederick S. Fedorsen and Adam Little for the Defendant/Respondent

HEARD: September 24, 2021

Endorsement

[1] Mr. Brown was charged in June 2018 with operating a motor vehicle while impaired by a drug. The charges were laid after a passerby contacted the police at about 11:30 a.m. to report a male seemingly passed out in his car in the middle of Fox Road in Oshawa.

[2] Following Mr. Brown’s arrest he was advised, at the roadside, of his right to counsel. He exercised that right and spoke with duty counsel when he arrived at the police station. Following his call with duty counsel, the police made demand for a sample of his blood pursuant to what was then s. 254(3.1) of the Criminal Code and which is now, in slightly revised form, s. 320.28(2) of the Code. Mr. Brown was conveyed to the local hospital to provide the blood sample. That sample was tested and found to contain a quantity of methamphetamine and amphetamine.

[3] Mr. Brown’s trial proceeded in the Ontario Court of Justice on October 8, 9 and 10 and November 8, 2019 before MacLean J. Blended with the trial were a number of Charter motions brought by Mr. Brown. While he did not take issue with the grounds for his arrest or the demand for the sample of his blood, he did assert that the police ought to have provided him with a second consultation with duty counsel after the blood demand was made. He also claimed that the taking of his blood infringed his s. 8 Charter right to be free from unreasonable search or seizure because he did not consent to it. Other Charter arguments were made, which are not relevant to this appeal.

[4] Oral judgment, with written reasons to follow, was delivered January 21, 2020. The oral judgment was as follows:

First of all, I am allowing the Charter Application and excluding the evidence of the blood samples and the analysis by the toxicologist at the Centre of Forensic Sciences. So, that removes that important piece of evidence from the case.

With the evidence that remains, there is certainly some evidence that you may have been impaired by drugs but I am left with a reasonable doubt about that. So, you are entitled to an acquittal based on a reasonable doubt.

I will say this, sir, I do not know whether your condition was due to fatigue or drugs, or both but you had no business being behind the wheel that day. You cannot be driving in a condition, for whatever reason, that you are passed out behind the wheel in live traffic with the radio blaring.

So just make sure. Sometimes people drive when they are so tired that they are putting others at risk. So, we have had fatalities on the 401 that way where people, in the old days before the medians were built, went across the 401 into the oncoming lanes and killed people. So, you just cannot drive in the condition you were in, do you understand, sir?

[5] Following her oral judgment, the trial judge emailed Crown and defence counsel, on February 10, 2020, asking if they wanted to make further submissions to her in light of an arguably relevant decision released by the Court of Appeal on January 29, 2020, specifically R. v. Tahmasebi, 2020 ONCA 47. Both Crown and defence counsel declined the trial judge’s offer, each taking the position that she was functus officio. The Crown’s response was provided on February 26, 2020 and it included an indication to the trial judge that the Crown had served a Notice of Appeal of the acquittal on February 20, 2020.

[6] On April 11, 2020, the trial judge provided comprehensive written reasons for her decision to acquit Mr. Brown. She made extensive references to the Tahmasebi decision, ultimately distinguishing it from this case on the facts. Crown and defence counsel agree that the trial judge’s communications with counsel post-verdict and the substance of her subsequent written reasons suggest that she was open to being persuaded that the verdict delivered on January 21, 2020 was wrong or could be overturned. They agree that a reasonable person would apprehend that the written reasons do not reflect the trial judge’s decision at the time the verdict was rendered, but rather appear to be “results-based” - an effort to defend the verdict, rather than an articulation of how it was arrived at.

[7] Crown and defence counsel are agreed that this court, sitting as a summary conviction appeal court, is precluded from considering the trial judge’s written reasons when addressing the merits of the appeal. See R. v. Teskey, 2007 SCC 25. They further agree that the brief oral reasons given January 21, 202