Court File and Parties
COURT FILE NO.: SCA(P) 1046/21 DATE: 2022-11-02
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING Respondent
- and -
RAKHI AGGARWAL Appellant
Counsel: Ms. S. Burton, for the Respondent Mr. A. Zaitsev, for the Appellant
HEARD: November 1, 2022, by Zoom Videoconference
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice P.F. Monahan, dated August 24, 2021]
STRIBOPOULOS J.
I. INTRODUCTION
[1] After a trial, the Appellant was found guilty of operating a conveyance while impaired and having a blood alcohol level over the prescribed legal limit. The trial judge conditionally stayed the impaired operation charge and, for the excess blood alcohol offence, imposed a $2,200 fine, a $300 victim surcharge, and a 12-month driving prohibition.
[2] The Appellant alleges the trial judge committed errors that require this court to allow her appeal and order a new trial. The Crown denies that the trial judge committed the errors alleged by the Appellant and submits that this court should dismiss the appeal.
II. THE EVIDENCE
[3] At 4:10 a.m. on August 28, 2020, police found the Appellant in her car parked on the street in front of the residence she shared with her boyfriend. A neighbour, Mr. Saroop, had called the police because the Appellant and her boyfriend were arguing loudly outside their home.
[4] When the police arrived, the Appellant was sitting in the driver's seat, and her car was running. She was not wearing shoes or her seatbelt. However, the Appellant had her purse with her inside the vehicle. The police arrested the Appellant after concluding that she was drunk. Ultimately, the Appellant furnished two breath samples into an approved instrument, registering results of 200 and 190 milligrams of alcohol in 100 millilitres of blood. There was no issue that the Appellant was far too impaired by alcohol to operate her car that morning.
[5] Given the evidence and the positions of the parties, the trial turned on a single issue: whether the Appellant had "care or control" of her motor vehicle that morning.
[6] The Appellant testified and denied that she intended to set the vehicle in motion. Instead, she explained that after drinking eight shots of whiskey with her boyfriend between midnight and 4:00 a.m., the couple became involved in an argument. The focus of their dispute had something to do with an ex-girlfriend of the Appellant's boyfriend.
[7] The Appellant testified that the argument began inside the home but spilled outside. She acknowledged that once outside, they were arguing loudly enough that Mr. Saroop came to his window to ask them to quiet down.
[8] The Appellant testified that when she entered her vehicle, she had no intention of driving. Instead, she explained she was going to her car to separate herself from her boyfriend to diffuse and de-escalate the situation so that she could calm down. The Appellant testified to doing the same thing on earlier occasions. Finally, she noted that she would have put on her shoes had she planned on leaving.
III. THE TRIAL JUDGE'S REASONS
[9] After the evidence and final submissions were complete, the trial judge stood down before returning to court to provide oral reasons for judgment. In his reasons, the trial judge identified the live issue in the case, "whether or not the Crown proved that Ms. Aggarwal was in care or control of the car."
[10] The trial judge concisely summarized the evidence and the positions of the parties. Additionally, he referenced section 320.35 of the Criminal Code, which gives rise to a presumption of operation where an accused occupies the driver's seat of a car "unless they establish that they did not occupy that seat or position for the purpose of setting [it] in motion": Criminal Code, R.S.C., 1985, c. C-46, s. 320.35. The trial judge recognized that if the accused succeeds in rebutting the presumption, the Crown must prove the offence without relying on it. When it comes to motor vehicles, the Criminal Code defines "operate" expansively to include not only "driving" but also having "care or control": s. 320.11. The trial judge correctly described what the Crown must prove to establish care or control, referencing and quoting from the leading decision from the Supreme Court of Canada concerning its meaning: see R. v. Boudreault, 2012 SCC 56, 2012 S.C.C. 56, [2012] 3 S.C.R. 157. After doing all that, the trial judge analyzed the evidence with reference to the governing legal principles.
[11] As required, he addressed whether the Appellant had rebutted the presumption in section 320.35. That turned on whether the Appellant's evidence satisfied the trial judge, on a balance of probabilities, that when she first occupied the driver's seat, she did not intend to set the vehicle in motion: see R. v. Hatfield (1997), 33 O.R. (3d) 350 (C.A.), at para. 27. The trial judge concluded that the Appellant had failed to rebut the presumption. Which, standing alone, would have justified finding her guilty of the offences charged.
[12] Nevertheless, in the alternative, the trial judge went on to consider whether, based on all the evidence, he was satisfied beyond a reasonable doubt that once she was in the vehicle, the Appellant posed a realistic risk of setting her car in motion: Boudreault, at paras. 9, 41. That is the crucial question when it comes to proving care or control without reliance on the presumption, according to the Supreme Court of Canada in Boudreault. The Supreme Court recognized that a realistic risk of danger might arise in at least three ways, including where an intoxicated person who "initially does not intend to drive" later "while still impaired" has a change of mind and proceeds to do so: Boudreault, at para. 42. That danger was the exclusive focus of the parties' submissions at trial.
[13] After referencing the non-exhaustive list of factors identified as relevant to making that determination from R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Ont. S.CJ.), at para. 93, the evidence at trial related to those factors, and noting that he had considered "all the circumstances," the trial judge concluded that the Crown had "established beyond a reasonable doubt that Ms. Aggarwal was in de facto care and control."
[14] As a result, the trial judge found the Appellant guilty of both offences and, at the Crown's request, conditionally stayed the charge of impaired operation.
IV. THE GROUNDS OF APPEAL
[15] The Appellant advanced two principal grounds of appeal, which the remainder of these reasons will address in turn.
A. Did the trial judge engage in impermissible reasoning?
[16] The Appellant submits that the trial judge fell into error by engaging in "speculative reasoning" and relying on "'common-sense' assumptions and stereotypes, and facts not in evidence throughout his judgment." The Crown responds that the trial judge did no such thing and that he engaged in appropriate and permissible reasoning.
[17] It is trite that trial judges are permitted to draw inferences that reasonably and logically flow from the facts established by the evidence. However, if they draw inferences the evidence does not reasonably support, they commit reversible error by crossing into the impermissible realm of conjecture and speculation: see R. v. MacIsaac, 2015 ONCA 587, 337 O.A.C. 190, at para. 46; R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541.
[18] In that regard, trial judges must guard against speculative reasoning that invokes "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. J.C., 2021 ONCA 131, at para. 58. Relatedly, a trial judge cannot base factual findings on stereotypical inferences about human behaviour: J.C., at para. 63. To be sure, none of this precludes judges from drawing on "human experience about human behaviour to interpret evidence.": J.C., at para.
[19] In advancing this ground of appeal, the Appellant points to what she characterizes as impermissible reasoning that she claims is evident in the trial judge's analysis. For example, when dealing with whether she had rebutted the presumption of care or control under section 320.35, the trial judge made the following comments in analyzing the evidence. First, after noting that the Appellant testified that she got into the car to calm down, the trial judge observed, "nothing she had done thus far to that point suggests she was going to calm down." Second, in response to the defence submission that the Appellant had nowhere to go at that hour, the trial judge noted that: "She could simply drive off and go to a coffee shop or see a friend." And finally, there are these remarks by the trial judge:
Common sense indicates that arguments often escalate resulting in one person leaving. When the arguments are infused with alcohol as they were here, the events are even more unpredictable…. One logical step for Ms. Aggarwal to take, notwithstanding her intoxication, would be to take off in the vehicle and her actions show that she was close to doing that.
[20] Later in his reasons, when dealing with whether the Crown had proven care and control beyond a reasonable doubt, the trial judge made the following observations that the Appellant also impugns as speculative:
Seriously impaired people make bad decisions, and even if she did not intend to operate the motor vehicle when she first got into it, she could have easily changed her mind and done so, and that was a realistic risk of danger here. The fact that she was at the place she had earlier thought she would stay for the night does not change it. She could easily leave, and people often do when arguments take place.
[Emphasis added]
[21] With respect, I am not satisfied that any of the excerpted passages from the trial judge's reasons for judgment crossed the line from permissible reasoning using human experience about human behaviour into the impermissible terrain of ungrounded "common-sense" assumptions.
[22] First, some of the impugned comments were firmly grounded in the record, including the uncontested evidence that the Appellant was upset, had been arguing loudly with her boyfriend before the police arrived, and was very drunk.
[23] Second, other observations were appropriate examples of reasoning logically by drawing on human experience about human behaviour. For instance, it does not require expert evidence to know that alcohol impairs judgment and interferes with a person's ability to regulate emotions. Similarly, the potential for these effects to become more acute depending on external factors, like being involved in a heated argument, hardly seems speculative. The trial judge's finding that the Appellant could have decided to drive off in that condition in these circumstances was reasonable and logical.
[24] Finally, the trial judge referring to the possibility of the Appellant going to a coffee shop or a friend's house did not cross the line into impermissible speculation. The Appellant challenges these comments as having no foundation in the evidence, given that no one testified that, at that hour, a nearby coffee shop was open or that the Appellant had a friend she could visit.
[25] With respect, that submission misses the trial judge's point. Ultimately, the Appellant was very drunk and extremely upset with her boyfriend, with whom she resided. In these circumstances, the trial judge concluded that there was a real risk she could drive off; where she might go, a coffee shop, a friend's house, an adjacent street, or a nearby park, did not matter. The critical finding was that she could have decided to go elsewhere, given all the circumstances.
[26] For these reasons, I cannot accede to this ground of appeal. I am not convinced that the trial judge engaged in impermissible reasoning in finding the Appellant guilty of the offences charged.
B. Was the verdict unreasonable?
[27] In her factum, the Appellant claimed that the trial judge's decision was "unreasonable." In that regard, the Appellant advanced various arguments. First, she submitted that the trial judge misapprehended the controlling legal tests and misapplied the law, identifying three specific examples to support this claim. Second, the Appellant submitted the trial judge misapprehended the evidence and/or failed to give effect to the evidence. And finally, the Appellant claimed that the trial judge did not provide adequate reasons for his credibility findings. The Appellant's counsel only seriously pressed one of these submissions at the hearing; the adequacy of the reasons relating to the question of credibility. Nevertheless, I will briefly, in turn, address each of the Appellant's three principal claims.
[28] First, from my review of the trial judge's reasons, I cannot identify any legal error in his explanation of the presumption of care or control or the principles that govern if an accused succeeds in rebutting the presumption. In that regard, the trial judge accurately described the law, including the Supreme Court of Canada's holding in Boudreault. Nor do his reasons reveal any legal error in applying the governing principles to the evidence in this case.
[29] The trial judge correctly identified the presumption found in section 320.35 of the Criminal Code, including that the Appellant had the burden of establishing, on a balance of probabilities, that she did not intend to drive when she first occupied the driver's seat.
[30] Additionally, after addressing whether the Appellant had rebutted the presumption and concluding, based on the evidence, that she had not, the trial judge nevertheless considered whether the Crown had proven beyond a reasonable doubt that the Appellant had de facto care or control of her vehicle.
[31] As conceded by the parties during final submissions, in this case, that second issue turned on whether an intoxicated person who initially does not intend to drive may later decide to do so: Boudreault, at para. 42. The trial judge quoted Boudreault and the Supreme Court's observation in that decision that the question is whether there is "a realistic risk, as opposed to a remote possibility, of danger to persons or property": at para. 9 (italics in original).
[32] From my review of the trial judge's reasons, I cannot accede to the Appellant's submission that the trial judge fell into legal error in his explanation of the law or in his application of the governing principles to the evidence he accepted.
[33] Second, the Appellant submits that the trial judge misapprehended the evidence. The starting point for achieving success with this ground of appeal is demonstrating that the trial judge made a mistake concerning the evidence at trial: see Morrissey, at p. 541; R. v. Stennett, 2021 ONCA 258, at para. 52; R. v. Lohrer, [2004] 3 S.C.R. 732, 2004 SCC 80, at para. 1-2.
[34] In advancing this ground of appeal, the Appellant fails to point to a concrete example of the trial judge incorrectly stating some material aspect of the evidence. Instead, she highlights various parts of the evidence the trial judge emphasized and the reasonableness of the inferences he drew based on that evidence. The Appellant provides several examples, but it is unnecessary to canvas each. They are all similar; the "worst" example identified by the Appellant assists in putting this complaint in context.
[35] The uncontested evidence was that when police located the Appellant in her car, while it was running, she had her purse with her. In response to the argument made by defence counsel at trial that if the Appellant had intended to drive, she would have been wearing her shoes, the trial judge observed: "Why would she take her purse with her if she was just planning on sitting in the car?" The Appellant points out that there was no direct evidence that the Appellant took her purse with her when she exited the house that morning and argued this observation lacked any evidentiary support and was unreasonable.
[36] However, the Appellant testified to retrieving her car key from her purse which was with her in the car. Although she never was asked if she took her purse with her when she left the house, the trial judge's finding that she had is hardly unreasonable based on this record. After all, the alternative, that she parked her car on the street and left her purse inside with her car key in it seems rather improbable. Based on the available evidence, the trial judge did what the law permitted him to do. He drew a reasonable inference.
[37] The same is true of all the other complaints made by the Appellant that the trial judge misapprehended the evidence. With respect, each invites this court to draw different inferences than those preferred by the trial judge. On appeal, it is not the role of this court to revisit the factual findings made by a trial judge absent palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55.
[38] The Appellant has failed to establish the trial judge misapprehended the evidence or that palpable and overriding error tainted any of his findings.
[39] Finally, the Appellant challenges the adequacy of the trial judge's reasons concerning credibility. As noted, the facts at trial were largely uncontested, with one exception—the neighbour who called the police, Mr. Saroop, testified that once he came outside, he told the Appellant to quiet down, but she would not. Further, Mr. Saroop testified the Appellant's boyfriend told him he did not know her and encouraged him to call the police. And that the Appellant also spoke to him and urged him not to call the police. In contrast, the Appellant testified that she never talked to the neighbour.
[40] During cross-examination, Mr. Saroop acknowledged that in his police statement, he did not reference these conversations with the Appellant and her boyfriend. Pressed concerning why he would have omitted them, he testified that the police told him to provide "an overview largely" and to leave the specific details for "when ... you get to court." The Appellant did not call the police officer who took Mr. Saroop's statement to contradict that evidence.
[41] Nevertheless, the Appellant submits that the trial judge's reasons should have explained why he accepted Mr. Saroop's testimony concerning the exchanges he alleged with the Appellant and her boyfriend. She argues that Mr. Saroop's explanation for omitting relevant details from his police statement was, on its face, incredible.
[42] In his reasons, the trial judge accepted Mr. Saroop's evidence, including his testimony about the conversations he described having with the Appellant and her boyfriend. However, in doing so, the trial judge did not address Mr. Saroop's testimony concerning the comments he ascribed to the officer who took his statement. The Appellant submits that because of this failure, the trial judge's reasons are inadequate as they do not permit meaningful appellate review.
[43] An appellate court tasked with determining whether a trial judge provided sufficient reasons must take a functional approach: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. An appeal based on insufficient reasons "will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review": R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25.
[44] Ultimately, I am less than convinced that there was anything inadequate about the trial judge's reasons for judgment. While appellate counsel made much of Mr. Saroop's credibility and suggested it was an essential issue, that was not a view shared by defence counsel at trial. During final submissions, trial counsel acknowledged, as it concerned Mr. Saroop's evidence, that: "It doesn't, you know, resolve this case one way or another."
[45] Given that concession, which was entirely reasonable based on all the evidence and the live issues at trial, I cannot fault the trial judge for not addressing Mr. Saroop's credibility more meaningfully than he did in his oral reasons.
[46] After all, the Appellant's evidence concerning the material aspects of Mr. Saroop's testimony was, for the most part, consistent with it. The Appellant acknowledged during her testimony that she and her boyfriend were having a loud argument outside their residence, resulting in their neighbour opening his window and telling them to quiet down.
[47] Appellate review requires a functional and contextual approach to assessing the adequacy of a trial judge's reasons. They must be read as a whole, against the evidentiary backdrop of the trial and the positions of the parties, without finely parsing them in search for error: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 35; Morrissey, at pp. 524-525. Ultimately, it is unnecessary for the reasons to demonstrate that the trial judge considered all the evidence or answered each argument made by counsel: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30. Provided the reasons demonstrate that the trial judge recognized and dealt with the live issues, based on the evidentiary record and the submissions of counsel, thereby revealing the basis for the verdict reached, they are adequate: R.E.M., at paras. 55-56.
[48] All that is especially so when assessing the adequacy of oral reasons delivered after a short and simple trial by a judge presiding in the Ontario Court of Justice in a jurisdiction like Brampton, which is arguably one of the busiest provincial courts in the country: see R. v. Richardson (1992), 9 O.R. (3d) 194 (C.A.), at para. 13; Sheppard, at para. 55; R. v. Haller, 2008 ONCA 517, at para. 2; R. v. Slater, 2016 ONSC 2161, 94 M.V.R. (6th) 224, at paras. 24-25 (per Nordheimer J, as he then was).
[49] Ultimately, mindful of all these principles, the trial judge's reasons for judgment more than adequately addressed the live issues at trial and explained how and why he came to the decision he did.
[50] As a result, I reject the Appellant's claim that the trial judge's decision finding her guilty of the offences charged was in any way inadequate or unreasonable.
V. CONCLUSION
[51] For all these reasons, the court dismisses the appeal.
[52] The stay of the driving prohibition granted pending this appeal has accordingly expired under the terms of the order that granted it.
Signed: Justice J. Stribopoulos
Released: November 2, 2022
COURT FILE NO.: SCA(P) 1046/21 DATE: 2022-11-02
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
– and –
RAKHI AGGARWAL
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice P.F. Monahan, dated August 24, 2021]
Justice Stribopoulos
Released: November 2, 2022