COURT FILE NO.: CR-21-00008438AP
DATE: 2021-11-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Leonard Kim, Counsel for the Appellant
Appellant
- and -
LEVI LAUNDRIE
Naomi Sayers, Counsel for the Respondent
Respondent
HEARD: October 20, 2021
VARPIO J.
REASONS ON APPEAL
[1] The Crown appeals Mr. Levi Laundrie’s acquittal on drinking and driving charges pursuant to ss. 253(1)(a) and 253(1)(b) of the Criminal Code of Canada. In a trial that was heard on April 29, 2019 and continued on March 11, 2021 and April 9, 2021, the trial justice excluded the accused’s breath samples as a result of a putative s. 8 Charter violation. The trial justice also had a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. Accordingly, the trial justice acquitted the accused on both charges.
[2] For the reasons that follow, I find that the trial justice failed to adequately consider important, relevant evidence. The trial justice also considered evidence that was not properly admitted at trial. Accordingly, the acquittals are set aside and the matter is hereby remitted to the Ontario Court of Justice for a new trial.
FACTS
The Offence
[3] On April 27, 2018 at 2:38 a.m., the Sault Ste. Marie Police Service (“SSMPS”) was dispatched to 113 Bainbridge Street in Sault Ste. Marie, Ontario to investigate a suspected impaired driver. Upon arrival, police officers saw a motor vehicle on its side in a front yard, driver’s side down. The vehicle had apparently failed to navigate a turn at the bottom of a hill. It was raining. The accused was standing on the vehicle.
[4] One of the officers on scene, Cst. Mark Kates, arrested the accused for impaired driving and, at the police station, the accused gave breath samples that exceeded the legal limit. The accused was subsequently arrested for operation of a motor vehicle while having a blood alcohol concentration greater than 80 mg of alcohol in 100 mL of blood.
The Trial
The Charter Applications
[5] Mr. Laundrie filed a Charter application arguing that his section 8, 9, and 10(b) Charter rights were infringed by the SSMPS such that the results of the breath samples ought to be excluded from trial pursuant to s. 24(2) of the Charter. He also filed a s. 11(b) Charter application. The s. 11(b) Charter application was dismissed.
Cst. Kates
[6] On April 29, 2019, Cst. Kates gave testimony. The Crown asked Cst. Kates about arriving on scene. He was asked about conversations he had with the accused. Cst. Kates testified that,
Sure, Mr. Laundrie claimed that someone else was driving the pickup truck and they had ran away [sic], however he didn’t provide me a name of a person or anything like that. He also stated to me that he was drunk so he wouldn’t be driving.
[7] The Crown then asked Cst. Kates about his reasonable and probable grounds to arrest the accused. Cst. Kates was asked the following question and gave the following answer:
Q. All right and I’m going to keep track here, just with my pen, so what observations then, Constable Kates did you make of Mr. Laundrie regarding his physical condition and demeanour when you had this conversations, when you had these conversations with him at 2:45?
A. So, like I said his eyes were glossy, he had slurred speech and there was somewhat of a delay in him answering my questions. I also detected, like I said, a strong odour of alcohol emitting directly from his breath and all those factors, him being the registered owner of the vehicle, after speaking to two witnesses and him, the accused himself, I, it was 2:45 hours I formed reasonable and probable grounds to believe that Mr. Laundrie was impaired by alcohol while operating a motor vehicle. I advised him he was under arrest at that time, I did arrest him…
[8] In cross-examination, Cst. Kates was asked about his knowledge of the accused:
Q. But let me just back up a little bit. Did you know this person before this night?
A. I don’t believe I did, no.
Q. You have no particular understanding of facial movements, facial gestures, facial complexion, how he speaks normally, whether he gets a mumble [sic] like he talks like he’s got marbles in his mouth, you didn’t have any of that information? It’s all, this is all sort of first impressions that you’re drawing from this individual?
A. Yes.
[9] Cst. Kates was then asked questions about whether the airbags were deployed on the vehicle and the officer testified as follows:
Q. Well, all right, but I’m suggesting to you that one of the airbags did go off, okay, and that someone that climbs out of a vehicle which has just been impact [sic] can appear disoriented and distracted and dazed and unsteady on their feet, would you agree with that?
A. Yes but I did detect alcohol coming from his breath so....
Q. [indiscernible]
A. I didn’t arrest solely on that, those observations so....
Q. And alcohol tells you the person’s had something to drink, right? That’s what it tells you, correct?
A. Some alcohol to drink, yes.
Q. Okay. Now, this person was able to climb up on the side of the vehicle where it was laying on its side and he climbed upon top of it, did you see him do that?
A. I saw him standing on top of the vehicle when we arrived, that’s what I observed.
Q. Did you see him climb down?
A. I imagine he got down at some point, yeah, but I originally went directly to the witnesses to gather evidence.
Q. But you didn’t see him fall down getting off this vehicle?
A. No, I did not.
[10] The breath room video was played for the court. Counsel for the accused (not counsel on appeal) asked Cst. Kates questions about whether the officer believed that the accused was in a state of shock after having been in an accident. The officer disagreed with the suggestion that the accused was in a state of shock. Cst. Kates was then asked the following questions, and gave the following answers:
Q. Okay. So, we watched him [Mr. Laundrie] in the video, would you have said that you had reasonable and probably [sic] grounds to believe he was impaired by that video?
A. Based on all the other evidence, yes I would.
Q. Well, just based on the video?
A. Just based on the video?
Q. Yeah.
A. And nothing else he told me or anything like that or any witness statements?
Q. What you saw on the video. His speech, his walking, his standing, his response, his coherency, like those sorts of things, wouldn’t you agree that you would require an ASD?
A. No, I’m not basing that on that evidence, I’m using all the evidence that was there, witnesses, the...
Q. At the scene....
A. ...a single motor vehicle collision, that alcohol emitting from his breath, I’m not just going off a booking in video, I’m not sure what you want me, how you want me to answer that.
[11] Counsel asked the officer to contrast his observations at the scene with that which was observed on video:
Q. You don’t have the breath in that video, just that. So, what you’re saying is, if I understand you, is that based on, based on the booking in video that there’s not enough to arrest him for impaired driving. That you’d have to go back and call on your recollection of the other details at the scene?
A. Well, I’m not sure, like, that’s not the situation here is me having enough grounds to arrest him based on the booking in video. So, I....
Q. I’m just, I’m asking you that question.
A. And that’s why response, I’m not, I’m not basing it solely on when he’s already been brought to the station....
Q. I understand that you’re not, what you did is not based on the booking in video but if you had to look at the booking in video, you wouldn’t have enough grounds to arrest him...
A. Well....
Q. ...would you agree with that?
A. No, I wouldn’t agree with that.
Q. Why not?
A. I wouldn’t agree with it.
Q. I mean there’s two different things here. You’re saying it’s in a different location, you have different information but wouldn’t you have to agree if you could slice these two things, these two time fragments in separate segments that the booking in video doesn’t give you grounds to arrest on impaired driving, then you have to agree to that?
A. I don’t know how to respond to that because...
Q. Well, you can respond.
A. ...there’s a whole sequence of events on why I arrested him and....
The Accused
[12] Mr. Laundrie testified on March 11, 2021. The court asked counsel for the accused “were you going to call a witness then for the voir dire?” Counsel replied by stating: “I’ll call my client. Before I call – I just want – I would like to sort this…” at which point the court, the Crown and the accused dealt with other issues.
[13] At the end of this discussion, the trial justice then asked counsel: “So, do you wish to call then evidence then on the voir dire?” Counsel for the accused replied by stating: “Mr. Laundrie, please”.
[14] At the end of Mr. Laundrie’s evidence, the court asked: “Any other witnesses on the voir dire?” to which counsel replied, “No, Your Honour”.
[15] Mr. Laundrie testified that, inter alia, he was in a single motor vehicle accident on the night in question and that his vehicle flipped and his airbags deployed. The airbags struck his head and that he was in a state of shock as a result.
[16] At no point did counsel ask to have Mr. Laundrie’s evidence applied to the trial proceedings. In fact, in his final submissions, the Crown stated:
By agreement, you’ll recall that the evidence was blended [on the trial and the Charter application], so all the evidence applies on the trial for the impaired, other of course than Mr. Laundrie’s testimony.
The Charter Ruling
[17] In finding that the SSMPS breached the accused’s s.8 Charter rights, the trialjustice ruled at paragraph 75:
Based on the comments of the arresting officer, although his articulated reasonable and probable grounds seem to have varied during the course of his testimony, it would appear that his grounds that the applicant was impaired were based on
a. The single vehicle accident;
b. The smell of alcohol coming from the mouth of the accused.
[18] The trial justice did not immediately indicate in his reasons why he found that Cst. Kates’ reasonable and probable grounds were based on only two factors. The trial justice made no mention of how the officer’s grounds apparently “varied” during the course of the officer’s testimony.
[19] The trial justice did refer to Cst. Kates’ more fulsome testimony regarding his grounds to arrest later in his reasons at paras 98 to 100:
The court finds that the officer detected alcohol on the breath of the accused which is consistent with recent alcohol consumption.
The court finds that the applicant did in fact tell the officer that he was not driving and the reason for him not driving was that he was drunk. The applicant does not remember making a statement to the officer that he was drunk but the court finds that he did in fact do so. The applicant’s memory seemed unclear as to a number of details following the accident. The court accepts that the applicant had some head trauma following the accident, and it is not surprising that the applicant would have some difficulty remembering the details of what transpired. The officer’s evidence was not undermined on this point.
Officer Kates observed the applicant to be slurring his words, delay in answering questions, and have glassy eyes. Such observations are consistent with recent head injury that may have been caused by the accident. Both officers were concerned with possible head trauma. Objective evidence established that air bags were deployed and the applicant confirmed being struck on the head. Those symptoms resolved minutes later. The court is not satisfied that the Crown has met it’s [sic] onus that Officer Kates did in fact possess reasonable and probable grounds to make the arrest, and the court finds a section 8 Charter breach.
[20] The trial justice excluded the breath samples after undertaking an analysis pursuant to s. 24(2) of the Charter.
The Impaired Ruling
[21] On April 9, 2021, the trial justice decided that he had a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by head trauma, as opposed to alcohol:
[b]ut the issue that I had is the evidence appeared to support, both in his [Mr. Laundrie’s] own testimony and in the objective testimony and the video… there was no longer any indicia, those indications of indicia of intoxication, shall I say, or impairment, and they were consistent then with being struck. So I then go back – and again, Mr. Laundrie testified and said I don’t remember saying that, that I was drunk. I accept it in my reasons that he said it, frankly. The evidence appeared to me, at least the issue of him being struck in the head and exhibiting certain behaviour was consistent [with a]… concern that he may have been struck in the head…
I similarly take a view of his [Mr. Laundrie’s] evidence, at least raising a reasonable doubt as to whether or not the impairment, and the indicia or the indications that he saw were consistent with head trauma or impairment due to alcohol consumption. And that’s why I find that I am not convinced beyond a reasonable doubt that Mr. Laundrie was impaired by consumption of alcohol
POSITION OF THE PARTIES
[22] The Crown appealed the trial justice’s findings and submitted that, inter alia:
a. The trial justice made several errors in his s. 8 Charter analysis including the fact that he failed to properly consider Cst. Kates’ fulsome testimony regarding reasonable and probable grounds;
b. The trial justice’s s. 24(2) analysis was flawed such that the samples ought to have been admitted into evidence irrespective of the trial judge’s errors in his s. 8 Charter analysis. As such, I ought to admit the samples and register a conviction; and
c. The trial justice’s analysis regarding impairment was flawed since the trial justice considered Mr. Laundrie’s voir dire evidence at trial.
[23] Mr. Laundrie submits that the trial justice made no errors and that the Crown’s appeal ought to be dismissed.
ANALYSIS
The Section 8 Ruling
Standard of Review
[24] The trial justice’s Charter ruling must be reviewed on a standard of correctness. The findings of fact underlying those Charter findings, however, are entitled to deference. In R. v. Virk, [2017] O.J. No. 7225 (S.C.J.), Fairburn J. (as she then was) stated at para. 43 of her reasons:
Findings of fact that inform whether an officer had reasonable and probable grounds to arrest are owed deference. Whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law and reviewable on a standard of correctness: R. v. Shepherd, 2009 SCC 35, at para. 20. As noted in Shepherd, at para. 20, "[a]lthough the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness." See also; R. v. Wang, 2010 ONCA 435, at para. 18; Bush, at para. 48.
[25] In R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326, the Ontario Court of Appeal at para. 31 clarified that a finding of fact as made by a judge at first instance may only be set aside where an appellate court finds a “palpable and overriding error or [finds that the lower court] made findings of fact including inferences of fact that are clearly wrong, unreasonable or unsupported by the evidence”.
Relevant Evidence and Appellate Review
[26] With respect to a judge’s duty to provide written reasons, the Supreme Court of Canada stated in Harper v. The Queen, 1982 CanLII 11 (SCC), [1982] 1 S.C.R. 2 at p. 14:
... Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.
[27] In R. v. Sheppard, 2002 SCC 26, Binnie J. discussed the intersection of sufficiency of reasons and the requirement that a court consider all necessary evidence. At para 28 of his reasons, Binnie J. found that a functional approach was necessary in order to determine whether, on a case by case basis, an appellate court could uphold the findings of a justice at first instance:
It is neither necessary nor appropriate to limit circumstances in which an appellate court may consider itself unable to exercise appellate review in a meaningful way. The mandate of the appellate court is to determine the correctness of the trial decision, and a functional test requires that the trial judge's reasons be sufficient for that purpose. The appeal court itself is in the best position to make that determination. The threshold is clearly reached, as here, where the appeal court considers itself unable to determine whether the decision is vitiated by error .... The simple underlying rule is that if, in the opinion of the appeal court, the deficiencies in the reasons prevent meaningful appellate review of the correctness of the decision, then an error of law has been committed.
[28] This functional approach to sufficiency of reasons was considered by the Supreme Court of Canada as it relates to the consideration of relevant evidence in R. v. Sinclair, 2011 SCC 40, [2011] S.C.J. No. 40. At para. 13, the Supreme Court of Canada adopted the Ontario Court of Appeal’s reasoning regarding the duties of an appellate court when reviewing a lower court’s ruling:
In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), Doherty J.A. explained that misapprehensions of the evidence include not only a mistake as to the substance of the evidence, but also "a failure to consider evidence relevant to a material issue" and "a failure to give proper effect to the evidence" (p. 218). I agree with Justice Doherty that "[i]n cases tried without juries, a finding that the trial judge did misapprehend the evidence can ... figure prominently in an argument that the resulting verdict was unreasonable" (p. 220).
[29] As regards evidence heard in a blended voir dire, the Ontario Court of Appeal reviewed the governing principles in R. v. Sadikov, 2014 ONCA 72 where, at para. 100, the court stated:
A voir dire, even a voir dire in a judge-alone trial, is a separate proceeding from the trial itself: Gauthier, at pp. 451-452. Evidence taken on a voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation: Erven, at p. 932; Darrach, at para. 66; Dela Cruz, at para. 24; and Gauthier, at p. 454.
Reasonable and Probable Grounds
[30] In R. v. Bush, 2010 ONCA 554, the Court of Appeal considered a situation where an investigating officer attended at the scene of an accident. Based upon certain indicia of impairment, the officer arrested the accused for impaired driving. At trial before the Ontario Court of Justice, the accused brought a s. 8 Charter application which was dismissed. Upon review at the Superior Court of Justice, the conviction overturned as the appellate court found that some of the accused’s indicia could have been caused by the accident.
[31] In restoring the conviction, the Ontario Court of Appeal effectively found at paras. 56 to 58 that alternative explanations for indicia of impairment do not negate an investigating officer’s ability to rely upon same when formulating reasonable and probable grounds:
An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21.
Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, [2009] O.J. No. 4403, 2009 ONCA 740, at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, it was wrongly decided.
Here the investigating officer testified that he took into consideration that the respondent had been in an accident. In assessing whether reasonable and probable grounds objectively existed, the trial judge appropriately considered that there had been an accident. However, that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable. I am persuaded that the appeal judge erred in finding the trial judge had permitted the accident to muddy the waters and failed to assess all the surrounding circumstances.
[32] Equally, the Superior Court of Justice considered a similar situation in R. v. Guenter, [2011] O.J. No. 2233 (ONSCJ); aff’d on other grounds 2016 ONCA 572. The court in Guenter stated at para. 30:
I am not persuaded that when assessed objectively, Cst. Campoli's belief that Mr. Guenter's ability to drive was impaired by alcohol was unreasonable. Granted her assessment was quick; she had only been with Mr. Guenter for a 3-4 minutes, and granted there might be alternate explanations for the individual physical manifestations of inebriation she considered; nevertheless, Cst Campoli's subjective belief in Mr. Guenter's impairment was, in my view, objectively reasonable as well. While alcohol impairment may not be the only possible inference on that information base, it is a reasonable one. The suggestion that a roadside device could have been used is not a factor that makes otherwise reasonable grounds less so. In coming to the conclusion I have, I have granted some deference to Cst. Campoli's decision in light of her training and experience in dealing with people under the influence of alcohol.
[33] It is clear, therefore, that an officer’s reasonable and probable grounds need not be capable of supporting an ultimate finding of guilt for the officer to rely upon same as grounds to arrest. Instead, the officer’s basis for her or his grounds must simply be reasonable in the circumstances.
The Charter Appeal
[34] I must afford deference to the trial justice’s finding that Cst. Kates’ reasonable and probable grounds were limited to: (a) the single motor vehicle accident; and (b) the smell of alcohol on the accused’s breath. Even after giving deference to the trial justice’s finding of fact, it must be stated that the trial justice committed palpable and overriding errors when he made this finding.
[35] The trial justice effectively found that the accused’s glossy eyes, slurred speech and delay in answering questions may have been caused by the accident.[^1] Pursuant to both Bush and Guenter, the trial justice had to weigh Cst. Kates’ reasonable and probable grounds in light of this finding. The trial justice failed to analyze whether this finding diminished the weight to be attributed to these indicia when Cst. Kates formulated his reasonable and probable grounds. Instead, the trial justice simply concluded that the Crown had not met its burden without explaining why this was the case. As per Pham, the failure to consider this relevant evidence is a palpable and overriding error.
[36] More importantly, the trial justice failed to consider the accused’s admission of drunkenness in any way as it pertained to Cst. Kates’ reasonable and probable grounds. Cst. Kates indicated that his reasonable and probable grounds were informed by his conversation with the accused. The trial justice found that the accused admitted to being drunk, which is an admission of guilt, provided the accused was the driver of the motor vehicle. The trial justice had an obligation to consider whether this statement could objectively support the officer’s subjective belief that the accused was guilty of impaired driving. The trial justice failed to consider this important evidence, which is a palpable and overriding error as per Pham.
[37] With respect to the finding that Cst. Kates’ evidence “varied” with respect to the officer’s reasonable and probable grounds, the trial justice’s ruling is not supported by the evidence. Counsel could not point to any area of the record where the officer allegedly equivocated about his grounds to arrest. Thus, the trial justice’s failure to identify those instances where Cst. Kates’s testimony varied about his grounds constitutes a palpable and overriding error as per Pham in so far as this finding was not based consistent with the evidence heard by the court.
[38] The Crown submitted that I ought to find that the officer had reasonable and probable grounds to arrest Mr. Laundrie for impaired driving based upon Cst. Kates’ evidence as per Bush. The Crown further submitted that I ought to dismiss Mr. Laundrie’s s. 8 Charter application and register a conviction on the “Over 80”.
[39] Unlike in Bush where the justice at first instance made clear factual findings upon which the Court of Appeal could rely, I do not have a firm factual record to ground any Charter analysis. The opacity of the trial justice’s reasons regarding Cst. Kates’ reasonable and probable grounds is such that I cannot make any findings as to the adequacy of the officer’s reasonable and probable grounds. Accordingly, the acquittal on the s. 253(1)(b) Criminal Code charge is hereby set aside and this matter is to be sent back to the Ontario Court of Justice for a new trial.
The Impaired Appeal
[40] As can be seen from the reasons reproduced above, the trial justice weighed Mr. Laundrie’s evidence when considering the ultimate issue of impairment. Based upon Mr. Laundrie’s evidence, the trial judge found that the accused’s physical state on scene may have been caused by the accident. The simple fact is, however, that Mr. Laundrie’s evidence applied only to the voir dire. Even giving deference to this finding of fact, the trial judge’s misapprehension of the evidence constitutes a palpable and overriding error as per Pham, Sinclair and Sadikov. This error requires that the acquittal on the s. 253(1)(a) charge be set aside and a new trial ordered.
CONCLUSION
[41] Appeal granted. A new trial is hereby ordered at the Ontario Court of Justice on both counts.
Varpio J.
Released: November 10, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LEVI LAUNDRIE
REASONS ON APPEAL
Varpio J.
Released: November 10, 2021
[^1]: I leave for another day whether such analysis is possible without expert evidence.