Court File and Parties

COURT FILE NO.: CR-21-07 DATE: 2022-05-19

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN – and – James Darrell Bigger, Appellant

Counsel: L. Marcon, for the Crown D. R. Lent, for the Appellant, Mr. Bigger

HEARD: February 25, 2022

ENDORSEMENT

CHOZIK J.

[1] The Appellant, James Darrell Bigger, was convicted by K. A. Wells J. of impaired driving, "over 80" and dangerous driving. At trial, Mr. Bigger argued that the police violated his rights under sections 8, 9 and 10(b) of the Charter of Rights and Freedoms, and that the Crown failed to prove that he was the driver of the white van that was seen being driven erratically.

[2] The trial judge rejected Mr. Bigger's arguments. She found no violations of Mr. Bigger's Charter rights. She was satisfied that the Crown had proven beyond a reasonable doubt that he was the driver of the white van.

[3] Mr. Bigger appeals those findings. He argues that the trial judge "did not properly interpret the evidence" in respect of identity, police entry into the Appellant's house (s. 8 violation), overholding (s. 9 violation) and his right to contact counsel of choice (s. 10(b) violation). On appeal, he asks me to re-examine and re-weigh the evidence, and reach different factual conclusions.

[4] An appeal is not an opportunity to re-try the case. On an appeal, my ability to set aside the findings of fact made at trial is very limited. Absent a mistake as to the substance of material parts of the evidence that play an essential part in the trial judge's reasoning process, or a failure by the trial judge to consider all of the evidence, the findings of fact made by a trial judge are entitled to deference: R. v. Loher, 2004 SCC 80, 2004 3 S.C.R. 732, at paras. 1-2. I cannot simply review the evidence and reach different factual conclusions.

[5] To succeed on this appeal, Mr. Bigger must establish that the verdict is unreasonable. Unreasonable verdicts are "exceedingly rare": R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 43-46. To make out that a verdict is unreasonable, Mr. Bigger must show that the trial judge has drawn an inference or made an essential finding of fact that is "plainly contradicted" by the evidence she relied on or "demonstrably incompatible" with evidence that is not contradicted or rejected. I may review and weigh the evidence, but in the absence of one of these errors, I cannot substitute my own view of the evidence for that of the trial judge.

[6] I have carefully considered Mr. Bigger's arguments, reviewed the trial record and the Reasons for Judgment. I have concluded that the appeal must be dismissed. Mr. Bigger invites me to do exactly what I cannot do – substitute my own findings of fact for those made by the trial judge.

Identity:

[7] With respect to identity, Mr. Bigger argues that the trial judge's conclusion that the white van observed by two witnesses (Mr. Norris and PC Matkowski) was one and the same is unreasonable. I do not accept his argument. Mr. Bigger has not pointed to any inference or essential finding of fact that is "plainly contradicted" or "demonstrably incompatible" with other evidence the trial judge relied on.

[8] In her Reasons for Judgment, the trial judge recognized that the two witnesses who observed the erratic driving did not observe the exact same things. She concluded that this was because they viewed the white van from different perspectives. The trial judge recognized and considered the inconsistencies in the witnesses' observations. In the end, the trial judge was satisfied that both witnesses observed and described the same white van.

[9] At paragraphs 15-17 of the Reasons for Judgment, the trial judge stated that she accepts that there were some differences in the observations made by the two witnesses, but that those differences did not undermine the evidence which led "to the overwhelming inference" that there was only one white van. The trial judge was also satisfied that Mr. Bigger was the driver of the white van. I see no error in the trial judge's reasoning process that would allow me to conclude that the verdict is unreasonable or substitute a different factual finding.

Section 8:

[10] At trial, Mr. Bigger argued that his s. 8 rights were violated when the police entered his home to arrest him. The trial judge rejected this argument. At paragraph 57, the trial judge set out her findings: when the police knocked on the door, Mr. Bigger exited the residence "of his own accord". He was then placed under arrest while outside. The trial judge concluded that there was no unlawful police entry into the residence. Therefore, there was no violation of Mr. Bigger's s. 8 rights.

[11] Mr. Bigger argues that this factual finding was unreasonable because PC Matkowsky testified that he saw the two officers enter the home and remove Mr. Bigger. At paragraphs 51-54 of the Reasons for Judgment, the trial judge took great care to set out why she did not accept PC Matkowsky's evidence about this. His evidence was inconsistent with the evidence of the two other officers, and inconsistent with other evidence the trial judge accepted, including the evidence of Mr. Bigger's wife. Their evidence was as the trial judge found, that Mr. Bigger exited the home, was arrested and that the officer entered the home after the arrest, with the consent of Mr. Bigger's wife, to get his phone.

[12] The trial judge, as the trier of fact, is entitled to accept all, some or none of a witness's evidence. Just because she accepted some of PC Matkowsky's evidence, does not mean she had to accept all of his evidence. Her conclusion that PC Matkowsky's evidence about the arrest was not reliable is supported by other evidence were reasonable and are not the product of a misapprehension or legal error. Absent misapprehension of the evidence or legal error, the trial judge's finding of fact – that the arrest took place outside – is entitled to deference.

[13] Mr. Bigger also argued at trial, and again on appeal, that the police violated his s. 8 rights when they entered onto his property to gather incriminating evidence. The trial judge rejected this argument, stating the following at para. 49:

As to the initial arrival at the Bigger property, I find that Mask and St. Clair attended for the purpose of following up on the calls received from both Ken Norris and PC Matkowski about the nature of Mr. Bigger's driving on the highway. On the basis of their experience and common sense, the possibility of an impaired driver was a live one, but prior to following up on the call that nothing more than speculation. It cannot be said that they were specifically there for the purpose of gathering "incriminating" evidence because they did not know what they were investigating. This case falls squarely within the principles set out in Lotozky, supra. Acting on the complaints received, police were entitled to attend on the property and go to the door for the purpose of communicating with the occupant(s) to investigate the driving. There was no section 8 breach in this regard.

[14] Again, in arguing that the trial judge was wrong, Mr. Bigger asks that I search different factual findings about the reason for their entry. I cannot do so. The trial judge did not err in law or principle. Her conclusions that there was no s. 8 violation is not based on any error.

Section 9:

[15] Mr. Bigger argued at trial that he was overheld by the police. After the breath tests were completed at the police station, he should have been released without delay. Instead, when he refused to sign a promise to appear, he was put back into the cells and not released until 5:00 a.m. the following morning.

[16] It would be a violation of a person's s. 9 rights to be held in custody because he or she refused to sign a promise to appear: R. v. Tikaram, 2008 ONCJ 124, 168 C.R.R. (2d) 358, at paras. 37-38. However, the trial judge found as a fact that this was not the reason for Mr. Bigger's continued detention. Rather, Mr. Bigger was held in custody for his own safety.

[17] The trial judge accepted the evidence of the breathalyzer technician that Mr. Bigger had incredibly high readings and was very intoxicated. Mr. Bigger did not dispute this evidence. He also told the officers to tell his wife, who had come to pick him up, to leave. Mr. Bigger also told the officers that he had until 2:00 a.m. to hit last call. The trial judge concluded that Mr. Bigger showed poor judgment. He was put back in the cells for these reasons, and not because he refused to sign the promise to appear.

[18] The trial judge recognized that there could be a s. 9 violation if police detain an individual either because they believed they had a duty to do so or because of a blanket policy not to release those who refuse to sign a promise to appear. But this was not such a case. The trial judge found that Mr. Bigger's continued detention was justified because Mr. Bigger was extremely difficult and there were real concerns for his well-being and that of others, who might be exposed to him. The evidence amply supported the trial judge's findings.

Section 10:

[19] At trial, Mr. Bigger argued that the police violated his right under s. 10(b) of the Charter by refusing to facilitate his contact with counsel of choice. In advancing this ground of appeal, Mr. Bigger relies on his testimony at trial. He argues that on his version of events, the s. 10 violation is made out.

[20] The trial judge rejected his version of events. Mr. Bigger invites this court to re-try the case and for me to substitute my views of the evidence for that of the trial judge. This is not my role on an appeal. The trial judge's findings of credibility and reliability are entitled to deference.

Conclusion:

[21] Mr. Bigger's arguments on this appeal are thinly veiled attempts to have this court re-try the case. That is not the role of the appellate court. The trial judge made careful findings of fact. Mr. Bigger has not shown any error of law or misapprehensions of the evidence that would permit me to conclude that those findings, or the verdict, are unreasonable, the product of a material misapprehension of the evidence or legal error.

[22] The appeal is dismissed.

Chozik J.

Released: May 19, 2022

COURT FILE NO.: CR-21-07 DATE: 2022-05-19

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

HER MAJESTY THE QUEEN – and – James Darrell Bigger, Appellant

ENDORSEMENT

Chozik J.

Released: May 19, 2022