Court File and Parties

COURT FILE NO.: 440/22 DATE: 20220328

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Respondent – and – Ademola Adeyiwola Appellant

Counsel: Kevin Kim, for the Respondent Jessica Read, for the Appellant

HEARD: March 22, 2022

THE HONOURABLE JUSTICE J. R. HENDERSON

Decision on Appeal

[1] This is the appellant’s appeal from his convictions on October 29, 2021, by Robinson J. in the Ontario Court of Justice on the charges of (1) operating a motor vehicle while his ability to operate it was impaired by alcohol (“the Impaired Driving Charge”), and (2) operating a motor vehicle with blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood (“the Over 80 Charge”).

[2] The appellant raises four grounds of appeal. The first two grounds relate to the Impaired Driving Charge and the third and fourth grounds relate to the Over 80 Charge.

Background Facts

[3] On January 24, 2019, the appellant was observed operating a motor vehicle at approximately 2:00 a.m. by Officer Damiano and Officer Krieger. The two police officers observed the appellant’s vehicle leave the Sundowner Nightclub in the City of Niagara Falls, accelerate quickly out of the parking lot and then weave within the vehicle’s own lane on the roadway.

[4] The police officers activated the police cruiser’s emergency lights, but the appellant did not stop his vehicle immediately. Instead, the appellant continued driving until he brought his vehicle to a stop either 200 metres or 500 metres further down the road.

[5] Officer Damiano, the primary investigator, approached the appellant’s vehicle. He testified that there was an odour of alcohol coming from the appellant’s breath and that the appellant’s eyes were tired and watery. He observed that the appellant spoke slowly with a Nigerian accent. The appellant told Officer Damiano that he had consumed two or three alcoholic drinks at the Sundowner.

[6] Officer Damiano formed the grounds to arrest the appellant, but he returned to the police cruiser to consult with Officer Krieger, who was the more senior officer, before doing so. As Officer Damiano was returning to the police cruiser, the appellant, contrary to instructions from Officer Damiano, exited his vehicle, walked beside his vehicle, and urinated on the roadside. Officer Damiano observed that the appellant leaned on his vehicle for balance.

[7] Officer Damiano arrested the appellant at 2:18 a.m. and escorted him into the police cruiser. At 2:27 a.m., Officer Damiano read the appellant’s rights to counsel and thereby informed him that he had the right to retain and instruct counsel without delay. Immediately thereafter, the appellant invoked his rights by indicating that he wished to speak with a lawyer.

[8] Thereafter, Officer Damiano questioned the appellant about the charges. The appellant confirmed that he had consumed two or three alcoholic drinks. The appellant at all times was polite and cooperative.

[9] Then, the appellant was transported to the police station and introduced to Officer Andree, a breath technician, who made his own notes and took breath samples from the appellant. Officer Andree obtained two suitable breath samples, the analysis of which both showed 150 milligrams of alcohol in 100 millilitres of blood.

Impaired Driving Charge

[10] In the first ground of appeal, counsel for the appellant submits that the trial judge erred by failing to consider the circumstantial evidence of impairment in the manner required by the decision in R v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[11] In Villaroman, the Supreme Court of Canada addressed the appropriate way to consider whether the Crown has proved its case beyond a reasonable doubt when one or more elements of the offence depends exclusively or largely on circumstantial evidence. The court held that, in order to convict, a trial judge must be satisfied that an inference of guilt is the only reasonable or rational inference that can be drawn from the circumstantial evidence. See Villaroman at paras. 30 and 41.

[12] Furthermore, when assessing circumstantial evidence, the trial judge must consider the evidence that is consistent with innocence as well as the evidence that is consistent with guilt. In particular, the trial judge is required to consider other plausible theories and other reasonable possibilities that are inconsistent with guilt. Those other theories or possibilities must be based on logic and experience applied to the evidence or the absence of evidence. See Villaroman at para. 37.

[13] The standard of review on appeal with respect to a conviction based entirely upon circumstantial evidence is whether the trial judge, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable or rational conclusion that was available on the totality of the evidence. See Villaroman at para. 55.

[14] In the present case, the trial judge made findings of facts based primarily on Officer Damiano’s testimony, and then the trial judge identified several of those facts as circumstantial evidence that was consistent with the appellant’s guilt on the Impaired Driving Charge.

[15] Specifically, the trial judge relied upon the evidence that the appellant’s vehicle picked up speed quickly, that the vehicle swerved within its own lane, that the vehicle did not stop immediately, that there was a smell of alcohol coming from the appellant’s breath, that the appellant spoke with slow speech, that the appellant had tired and watery eyes, that the appellant acknowledged consuming alcohol, that the appellant was slightly unsteady on his feet, and that the appellant leaned on his vehicle for support while urinating.

[16] I agree with appellant’s counsel who submitted that, in conducting this analysis, the trial judge did not consider some of the evidence that was consistent with the appellant’s innocence. That is, the trial judge did not consider some of the plausible theories and reasonable possibilities that are inconsistent with the appellant’s guilt.

[17] In particular, the trial judge appeared to rely in part upon the appellant’s slow speech as evidence of impairment, but the trial judge did not consider whether the appellant’s pattern of speech was a result of his Nigerian accent.

[18] Further, the trial judge did not fully consider the appellant’s explanation given to Officer Damiano that the appellant did not stop his vehicle immediately because it was raining. Officer Damiano did not mention this fact in direct examination, but in cross-examination he acknowledged that the appellant told him that he did not stop the vehicle right away because of the rain.

[19] Significantly, the trial judge did not fully consider whether the inclement weather explained some of the evidence of apparent impairment upon which the trial judge based the conviction. The evidence was that the temperature was -6° Celsius and raining. Common sense would suggest that any rain at that temperature in January would be freezing rain, or at least some form of icy precipitation. Common sense would also suggest that there was a reasonable possibility that the roadway was slippery.

[20] In her reasons, the trial judge referred to the weather and accepted that it was rainy and wet. However, the trial judge did not make any finding as to whether the roadway was slippery or not. The trial judge simply referenced Officer Damiano’s testimony that he had no trouble driving and that he did not find the road to be slippery. I note that Officer Damiano testified that he did not recall if it was freezing rain.

[21] I find that it was an error for the trial judge to not consider whether, based on logic and experience, there was freezing rain or icy rain at the relevant time. If the trial judge had done so, the trial judge likely would have concluded that there was a reasonable possibility that the roadway was slippery. If so, the trial judge should have then considered whether the slipperiness of the roadway was a plausible innocent explanation for the modest swerving of the vehicle within its own lane.

[22] Furthermore, slippery road conditions should also have been considered with respect to the appellant’s apparent unsteadiness on his feet while he was urinating. Is it plausible that the appellant leaned on his vehicle for balance because the roadway was slippery? In that respect, the trial judge should also have considered the evidence that the only time that the appellant exhibited any unsteadiness on his feet was while he was urinating at the roadside.

[23] In summary, I find that the impaired driving conviction in this case was based entirely upon circumstantial evidence. Therefore, a fulsome Villaroman analysis was required from the trial judge. Although the trial judge relied upon several pieces of evidence that were consistent with the appellant’s guilt, I find that the trial judge did not consider other plausible theories and other reasonable possibilities that were consistent with his innocence.

[24] Therefore, I find that the trial judge, acting judicially, could not reasonably be satisfied that the only reasonable or rational conclusion on the totality of the evidence was that the appellant was guilty of impaired driving.

[25] For these reasons, I will allow the appeal regarding the Impaired Driving Charge and set aside that conviction.

[26] The second ground of appeal also relates to the Impaired Driving Charge. The appellant submits that the trial judge erred by finding that Officer Damiano was credible and reliable, and by accepting Officer Damiano’s testimony in preference to the testimony of Officer Krieger and Officer Andree.

[27] The findings of a trial judge regarding credibility require significant deference from an appellate court. The standard of review is palpable and overriding error. An appellate court can only find that a palpable and overriding error has occurred in the trial judge’s assessment of a witness’s credibility where the finding cannot be supported on any reasonable view of the evidence. See the case of R v. Burke, [1996] 1 S.C.R. 474 at para. 7.

[28] In the present appeal, there is no need for me to review the appellant’s submissions on this ground as I have already determined that the conviction on the Impaired Driving Charge should be set aside on other grounds. Therefore, I make no finding on the second ground of appeal.

The Over 80 Charge

[29] The third ground of appeal relates to the Over 80 Charge. The appellant submits that there was a breach of s.10(b) of the Charter as, upon his arrest, the appellant was not informed of his right to retain and instruct counsel without delay.

[30] In the case of R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 37, the court confirmed that s.10(b) requires police to inform a detainee of his right to retain and instruct counsel “immediately”. At paras. 38 and 41, the court further confirmed that this right was subject to concerns for police safety, public safety, or the preservation of evidence. Counsel agree that the word “immediately” does not mean “instantaneously”.

[31] In the present case, there was a nine-minute delay between the time of the appellant’s arrest and the time at which he was informed of his right to retain and instruct counsel. The trial judge considered submissions with respect to the alleged breach of s.10(b) and found that there had been no such breach. The trial judge found that the nine-minute delay was explained by Officer Damiano, who testified that he waited for the appellant to finish urinating, escorted the appellant to the police cruiser, searched the appellant, and placed the appellant in the cruiser. Then, he began to review his impaired driving template, which referenced rights to counsel, at which point he informed the appellant of his right to retain and instruct counsel.

[32] I disagree with appellant’s counsel that this ground of appeal relates to an allegation that the trial judge committed an error of law, and accordingly that the standard of review is correctness.

[33] In my view, in her reasons, the trial judge correctly stated the law. Specifically, the trial judge was alert to the fact the appellant had the right to be informed of his s.10(b) rights immediately and noted that Officer Damiano incorrectly believed that his duty was to inform an accused of his s.10(b) rights as soon as practicable. Thus, the trial judge made no error of law.

[34] The trial judge’s findings with respect to the alleged breach of s.10(b) are findings of fact. The explanation for the nine-minute delay and a consideration of whether that delay was a breach of s.10(b) are factual findings. Therefore, the appropriate standard of review is whether the trial judge’s findings were unreasonable or cannot be supported by the evidence.

[35] I find that it was open to the trial judge in this case to accept Officer Damiano’s explanation for the nine-minute delay. Further, having accepted Officer Damiano’s explanation, it was open to the trial judge to find that the lapse of nine minutes complied with the timing requirements discussed in Suberu. The decision of the trial judge on this point is not unreasonable.

[36] For these reasons, I find that this third ground of appeal fails.

[37] The fourth ground of appeal also relates to the Over 80 Charge and the Charter. At trial, the Crown and defence counsel agreed that there had been a breach of the Charter as the appellant had invoked his right to retain and instruct counsel at approximately 2:27 a.m. by telling the police officers that he wished to speak with a lawyer. However, thereafter, Officer Damiano started to question the appellant about the charges prior to giving the appellant an opportunity to consult with a lawyer. The trial judge referred to this as the “hold off” breach.

[38] On this appeal, counsel for the appellant submits that the trial judge erred by failing to conduct a proper s.24(2) analysis with respect to this hold off breach, and therefore wrongly permitted the results of the breath analysis to be admitted as evidence at the trial.

[39] I find that there is merit to this ground of appeal. The trial judge undertook a s.24(2) analysis and in doing so correctly referenced the three-pronged approach set out in the case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71. However, in my view, it is difficult to understand the analysis conducted by the trial judge.

[40] Regarding the seriousness of the Charter-infringing conduct, the trial judge simply stated that police officers have been told since 1994 to hold off questioning the accused until the accused speaks with counsel or waives that right. The trial judge said nothing more about the seriousness of the Charter breach and thus it is unclear what conclusion was reached by the trial judge on this point.

[41] Regarding the impact of the breach on the Charter-protected interests of the accused, the trial judge seemed to conclude that the impact was significant as the trial judge indicated the implementation of s.10(b) rights was fundamental in a civilized society. The trial judge stated that the right to counsel goes beyond the accused to some extent. The trial judge then indicated that there was no causal connection between the breach and the breath samples, and that the absence of a connection mitigated the impact of the breach. Again, it is unclear whether the trial judge concluded that the impact was significant or not.

[42] To be fair to the trial judge, the analysis of the third prong of the Grant test, society’s interest in the adjudication of the case on its merits, was clear. The trial judge clearly stated that this factor favoured admissibility of the evidence.

[43] I accept the submission from appellant’s counsel that, although it is not obvious, the reasons of the trial judge could fairly be interpreted to mean that the trial judge found that the first two prongs of the Grant test favoured exclusion of the evidence. If that is the case, prior decisions from the court of appeal suggest that the third prong of the Grant test should not tip the balance in favour of admissibility.

[44] As was stated in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643 at para. 63, “In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence … If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”

[45] In summary, on this fourth ground, I find that there are problems with the trial judge’s s.24(2) analysis as it is difficult to understand the conclusions reached by the judge on the first two prongs of the Grant test. I also accept that, on its face, the trial judge’s analysis could be interpreted to mean that the breath analysis evidence should have been excluded.

[46] For these reasons, I find that the fourth ground of appeal raised by the appellant is a valid one. I will therefore allow the appeal regarding the Over 80 Charge and set aside that conviction.

Conclusion

[47] The Crown’s case with respect to both of these charges is greatly dependent upon the viva voce testimony of the police officers. Therefore, it is not appropriate for this appellate court to attempt to render a verdict. Rather, it is appropriate to return the matter to the Ontario Court of Justice for a new trial.

[48] Accordingly, I hereby set aside the convictions on the Impaired Driving Charge and on the Over 80 Charge. There will be a new trial on both charges.

J. R. Henderson J.

Released: March 28, 2022