COURT FILE NO.: CR-21-00000014-00AP
DATE: 20220823
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MANPREET GILL
Appellant
S. Ozkin, for the Respondent
R. Napal, for the Appellant
HEARD: August 22, 2022
REASONS FOR DECISION
On appeal from the decision of The Hon. Mr. Justice G.D. Krelove
Dated February 7, 2020
CHRISTIE J.
Overview
[1] The Appellant, Manpreet Gill, appeals his conviction on a charge of, on July 7, 2018, he had care or control of a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code. The Appellant was found guilty on February 7, 2020, after a one-day Charter voir dire was held on October 4, 2019. On February 5, 2021, the Appellant received a fine and was disqualified from driving for 12 months.
[2] The sole issue on this appeal relates to the sufficiency of the trial judge’s reasons on the s. 10(b) Charter application. The Appellant argued that the reasons of the trial judge were insufficient, specifically as related to the credibility findings made in relation to the informational component of the rights to counsel.
Facts
[3] On July 7, 2018, the Appellant and his brother, Sandip Gill, were driving back to Adjala Township after a family picnic. The Appellant was driving a Jeep Wrangler, and his brother, the only other occupant of the vehicle, occupied the front passenger seat.
[4] The vehicle was stopped by the police at a RIDE program at about 9:25 p.m.
[5] The Appellant got out of his vehicle and his brother stayed in their vehicle.
[6] Following a demand, the police administered an Approved Screening Device, and the Appellant failed.
[7] According to the Appellant, PC Morris told him that, if he wanted to, he can call a lawyer. He testified:
A. The police officer just told me, like if you want to, to call your lawyer, you can do that, and next you are tested at the police station, and they never explained me anything in detail what kind of counsel I can take it or I have no idea what they mean it. (page 8)
When asked to repeat what was said, the Appellant testified:
A. They told me that there's - the police officer said to me, "Okay, if you want, you can call your lawyer or you can consult a lawyer". (page 8)
When asked to clarify which statement was made by the officer, he said:
A. Just call a lawyer. (page 9)
When asked a fourth time, the following exchange took place:
MR. NAPAL: Q. What did the officers tell you about your, about rights to counsel, what did they say to you?
A. They didn't say anything, they just say that if you want you can call a lawyer.
Q. Right.
A. Yeah. Nothing else.
Q. If you want you can call a lawyer, is that...
A. Yeah.
Q. ...is that right?
A. Yeah. (page 9)
[8] At this time, the Appellant’s brother, Sandip Gill, had gone to the back of the Appellant’s jeep, and was within 2-3 feet of the officer who said this to the Appellant; in other words, he was within earshot. Sandip Gill stated in his testimony at page 58 that “they asked that he can consult his lawyer…nothing else….they didn’t explain to him like how can that help him or anything else.”
[9] According to the Appellant, the officer was not reading from anything at that time. (page 12-13)
[10] The Appellant testified that he had never been in trouble with the police and had no criminal convictions. The following exchange took place at the voir dire:
Q. Okay. So when the officer asked, said to you, "Well, you can speak to a lawyer", just, just tell us in your own words, what did you understand that to mean?
A. I'm like, I'm surprised, I don't understand how can - how can, like a lawyer can help me out with - in this kind of situation, so I don't have any idea...
Q. All right.
A. ...how can consult a lawyer assist me, because she....
Q. So when you just said that, I don't want to interrupt.... (page 14)
Counsel did interrupt and the Court asked the Appellant to finish his thought, to which he stated:
A. Because she never explained me, like the details or anything.
MR. NAPAL: Q. Mm-hmm.
A. So I have no idea what's going on, and I'm totally confused with that.
Q. Why were you totally confused?
A. Because I have no idea what did she mean it, and what she want to say. (page 15)
[11] When asked to clarify why he said “no” to calling a lawyer, he stated:
A. Because I don't have any idea, like how can consult a lawyer can assist me in this condition? So that's why I say, "No, I refuse it".
Q. Sorry, you used the word, "in this condition", what do you mean by that?
A. The situation like when they arrest me. (page 15)
[12] In cross-examination, the Appellant agreed that the officer said two things to him, “you can call your lawyer or you can consult a lawyer”. (page 47) He also, again, explained his thought process in declining to speak to counsel:
A. I have no idea what she mean there because I'm totally confused, and I don't, I don't have, like - I don't understand how can they assist me on this - assist me, like this situation, like I'm stuck in. How can they advise me? (page 47)
[13] The Appellant agreed with the following:
Q. You're also thinking, "No lawyers going to help me get out of this now anyway", right?
A. Yes, sir.
Q. So that, that's something you thought of on your own?
A. Yes, sir. (page 49)
[14] The Appellant testified that when the officer said that he could speak to a lawyer, it was just the female officer speaking and that he did not recollect the other officer saying anything. The following exchange took place:
Q. Okay. And that officer [the male officer] didn't read anything to you from a card?
A. No, sir. (page 35)
[15] In examination in chief, the Appellant was not asked anything about any discussion in the police cruiser after his arrest and on the way to the station. In cross-examination, the following exchange took place:
Q. And that's when the man arrested you for exceeding the legal limit, right?
A. Yes, sir.
Q. And then he took you to the back of his police cruiser, right?
A. Not, not out of the back of a police cruiser. It's like my Jeep, yeah, you can say that.
Q. Right?
A. Yeah.
Q. At some point he puts handcuffs on you?
A. Yes, sir.
Q. And gives you a seat in the back?
A. Yes, sir.
Q. And he's dealing with you while the officer is dealing - the female is dealing with your Jeep?
A. Yes, sir.
Q. Right? So while you're in the back this man is talking to you, right, right, Bragagnolo? The man officer, there's only one man officer on the scene, right?
A. He didn't talk to, to me too much, so....
Q. Okay. Well, so you knew you were in trouble?
A. Yes, sir. (pages 41-42)
[16] Sandip Gill confirmed that the Appellant was alone in the police cruiser with the male officer. (page 79) He was not present, nor could he hear the discussion that took place between PC Bragagnolo and the Appellant.
[17] The Appellant admitted that he asked an officer if he would have to stay the night at the police station, “because I’m worried about my kids”. He stated, “I feel like I just want to make sure”. (page 42-3) He agreed that he felt comfortable to ask that question.
[18] Back at the police station, the Appellant stated that the technician also spoke about calling a lawyer. The questions and answers were as follows:
Q. ...Now, when you were at the police station, what did anybody there say or not say, or whatever? You tell your own evidence about you speaking to a lawyer.
A. The, the technician...
Q. Yeah.
A. ...she said like, "If you want you can call, call, call a lawyer", same thing like....
Q. Is that all that was said?
A. Yeah.
Q. Nothing else?
A. Nothing else. And even, yeah, she didn't say anything. (page 14)
The Appellant admitted that the breath technician confirmed that the other officers had told him about his right to speak to a lawyer and that he acknowledged that they did by nodding yes. He agreed that he made it clear to the technician that he did not want to call a lawyer.
[19] Ultimately, the Appellant agreed that the police told him that he could call a lawyer and he decided that he did not want a lawyer. He agreed that was his choice. (page 54) He also agreed that he made this choice because he did not think a lawyer was going to help him. (page 55) The Appellant confirmed that he made the same choice at the station when the technician explained to him that he could call a lawyer of his choice.
[20] PC Matthew Bragagnolo testified on the voir dire. He stated that his partner, PC Morris had stopped the Jeep Wrangler at 9:25 p.m. and had called him over to assist her. According to PC Bragagnolo, he read the Appellant an approved screening device demand and the Appellant said that he understood that he had to blow into the device. PC Morris conducted the test and the Appellant failed. Following this, PC Bragagnolo stated that he had grounds to arrest him for “over 80” and did so. He cuffed him to the rear, searched him, and placed him in the rear of the cruiser. He then read the right to counsel and caution. He stated that he read from his OPP issued card. According to PC Bragagnolo, the Appellant indicated that he understood and that he did not wish to call a lawyer.
[21] PC Morris confirmed that she was with PC Bragagnolo at a RIDE stop involving the Appellant. She testified that she did not advise the Appellant of his rights to counsel at the scene and only did so when she was in the police cruiser enroute to the detachment.
[22] Both PC Morris and PC Bragagnolo stated that PC Morris was attending to the passenger when PC Bragagnolo was arresting the Appellant.
Analysis
[23] An appellate court is entitled to review, re-examine and re-weigh the evidence, but that is to be done for the sole purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. Provided this threshold has been met, the appellate court is not to substitute its view for that of the trial judge, nor permit any doubts it may have to persuade it to order a new trial. R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656 at para 14.
[24] It is well settled law that a trial judge must analyze the evidence carefully, make a well-informed credibility analysis, and provide reasons for disbelieving witnesses. In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, Binnie J. observed:
[15] Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[24] In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
[25] The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that (i) the verdict is unreasonable, (ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or (iii) on any ground where there has been a miscarriage of justice.
[26] The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.
[25] In R. v. R.E.M., 2008 SCC 51, at paragraph 11, the Supreme Court stated that reasons for judgment in a criminal trial have three purposes:
a. To tell the parties affected by the decision why the decision was made;
b. To provide public accountability of the judicial decision – “justice is not only done, but is seen to be done”; and
c. To permit effective appellate review
The Court in R.E.M. stated in part as follows:
[17] These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" -- the verdict -- and the "why" -- the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
[18] Explaining the "why" and its logical link to the "what" does not require the trial judge to set out every finding or conclusion in the process of arriving at the verdict…
[20] Similarly, the trial judge need not expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.
[37] As we have seen, the cases confirm that a trial judge's reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge's conclusions -- the "why" for the verdict -- are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.
[57] Appellate courts must ask themselves the critical question set out in Sheppard: Do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review? To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved. If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law.
[26] There is no question that the same principles are applicable in the context of reasons on a Charter voir dire. See R. v. Cunningham (2011) ONCA 543 at para 53.
[27] The sole issue on this appeal is whether the learned trial judge failed to provide sufficient reasons for his findings on the Charter application. Specifically, the Appellant argued that the learned trial judge preferred the evidence of the officers over the Appellant and his brother, thereby disbelieving the Appellant and his brother, without providing reasons for doing so.
[28] Upon reviewing the reasons for judgment, it is obvious that the learned trial judge made specific reference to the Appellant’s testimony and his brother’s testimony. The trial judge stated:
The Defendant testified that concerning his rights to counsel he was told, after his arrest by Officer Morris, that he could call a lawyer or that he could consult a lawyer. The Defendant responded that he did not want to speak to a lawyer.
The Defendant testified that he responded with this answer as he was confused and did not understand how a lawyer could assist him. He further testified that if he had received a more extensive explanation of his rights to counsel, he would have contacted a lawyer to get some advice.
Sandip Gill testified that he was standing about two or three feet away from his brother when Constable Morris told the Defendant that he could call or consult a lawyer.
The trial judge then referred to the evidence of the police officers:
The evidence of the police officers is quite different from the evidence of the two brothers concerning rights to counsel. Constable Bragagnolo testified that after the ASD fail result he arrested the Defendant and placed him into the rear cruiser seat.
In the cruiser he read the standard rights to counsel script from his police issued card. He asked the Defendant if he understood with the Defendant stating, “Yes”. He then inquired, “Do you wish to call a lawyer now?” The Defendant responded, “No”.
Constable Bragagnolo said that he then proceeded with the usual caution and the breath demand. During the drive in the cruiser back to the OPP office he heard Constable Morris ask the Defendant if he wanted to call a lawyer. At the police detachment Constable Bragagnolo asked the Defendant if he wanted to speak to a lawyer with a “no” response.
Constable Morris provided testimony that when the Defendant was initially in the cruiser, she was not in the cruiser, and she was dealing with the Defendant’s vehicle and the Defendant’s brother. During the drive to the OPP office with the Defendant and Constable Bragagnolo, she asked the Defendant if he requested to speak to a personal lawyer or to duty counsel. The Defendant responded in the negative.
[29] The Appellant claimed that the trial judge’s summary of the facts was not accurate as PC Bragagnolo had said that the Appellant was at the rear of the cruiser when he provided rights to counsel and that PC Morris was with PC Bragagnolo throughout the handcuffing and arrest of the appellant. This court does not agree with the Appellant’s characterization of the evidence. It was clear from the evidence given that PC Bragagnolo read rights to counsel when the Appellant was placed in the backseat of the cruiser and that no one else was present – not PC Morris and not the Appellant’s brother. Sandip Gill never suggested that he was present for any discussion between the male officer and the Appellant – in fact quite the contrary. Therefore, this court does not agree that the judge failed to appreciate the evidence on an important part of the Appellant’s claim.
[30] The Appellant further argued that the error on the part of the trial judge was demonstrated by his characterization of the discrepancy between the officers as to the location of the cars as being “of minor importance”. This court does not agree. While the distance between the vehicles may relate to any comments PC Morris made to the Appellant prior to the arrest, it would not have any impact upon the conversation that occurred in the police cruiser as described by PC Bragagnolo.
[31] The Appellant argued that the learned judge made no attempt to explain the reason he found that the Appellant and Mandip Gill were not credible. Quite frankly, this court agrees that the trial judge provided no such reasons for a negative credibility finding, and that, typically, such a finding requires reasons. However, it is the view of this court that the trial judge made no such negative credibility finding at all. The trial judge never found as a fact that the conversation with PC Morris did not occur as described. Rather the trial judge focused on the fact that rights to counsel were provided in the back of the cruiser by PC Bragagnolo. The Appellant was never asked about the conversation in the back of the cruiser. Sandip Gill was very clear that he was not privy to this discussion. Therefore, there was nothing to contradict the officer on this point.
[32] Both officers were unequivocal on their evidence with respect to where the Appellant was read his right to counsel and by whom. PC Bragagnolo testified that he was the one to place the Appellant under arrest, to handcuff and search him, to place him into the rear of the police cruiser, and to read his right to counsel from his police-issued card. PC Morris confirmed that it was PC Bragagnolo who read the Appellant his right to counsel and caution. Frankly, the Appellant and his brother also both confirmed that it was the male officer [PC Bragagnolo] who performed the arrest and placed him in the police cruiser. As for the conversation in the police cruiser, the Appellant was not asked about this conversation, a surprising omission given that it is a central issue in this case. While the Appellant did deny the male officer reading to him from a card, he was never asked specifically about the conversation in the cruiser. In examination in chief, he was not asked about this time period at all, and in cross-examination, in relation to this time period, he stated, “He didn't talk to, to me too much, so....” and this was never followed up on. Sandip Gill, the Appellant’s brother, admittedly, has no evidence to offer on this conversation as he was not present.
[33] While it is true that it would have been preferrable for the trial judge to refer to the fact that the Appellant and his brother offered no evidence with respect to the discussion with PC Bragagnolo in the police cruiser, leaving the only and uncontroverted evidence to be that of the officers, this does not lead to success for the Appellant on this appeal. It is obvious on the record that, on this issue, there was no credibility issue to be determined, and no preference of the police officer’s evidence over that of the Appellant’s evidence.
[34] In submissions, the Appellant, ultimately, conceded that if the rights to counsel were in fact read by PC Bragagnolo from his issued card, this would satisfy the informational component of s. 10(b). On the facts of this case, there was no evidence to suggest this never occurred.
[35] It is this court’s view that this is determinative of this appeal. The Crown’s analysis of various inconsistencies in the brothers’ evidence, or the relevance of issues raised during cross-examination of the brothers, does not further this appeal. The trial judge did not refer to or analyze these issues, and, frankly, it was not necessary for him to do so to decide this Charter application.
[36] The trial judge’s reasons are brief; however, this is not the yardstick by which to measure sufficiency. Brevity should be applauded not criticized, so long as the reasons show a thorough analysis of the evidence and the issues in the case. The issue that this case turned on was a narrow one. The trial judge’s reasons demonstrate that he was alive to the issues at play on the voir dire, considered those issues, and decided that the Appellant had not met his onus.
[37] Given this court’s determination that the reasons are sufficient, there is no reason to consider the curative proviso argument.
[38] The appeal is dismissed.
Justice V. Christie
Released: August 23, 2022