Her Majesty the Queen v. Cailin Tracey, 2022 ONSC 708
COURT FILE NO.: CR-21-10000036-00AP
DATE: 20220202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CAILIN TRACEY
Defendant/Appellant
Joanne Bruno, for the Crown/Respondent
Douglas Lent, for the Defendant/Appellant
HEARD: December 9, 2021
MOLLOY J.:
REASONS FOR DECISION
A. INTRODUCTION
[1] Cailin Tracey appeals from the decision of The Honourable Justice S. Clark, dated April 22, 2019, convicting her of the offence of driving with a blood/alcohol level above the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. After her arrest on the charge of impaired driving, Ms. Tracey was taken to a police station where she provided two breath samples, which provided readings of 180 and 170 respectively, more than double the legal limit.
[2] Three grounds of appeal are raised:
i. The trial judge erred in allowing the Crown to recall P.C. Wiltshire after he had already testified and been cross-examined, in order to prove the original certificates of analysis from the breath samples;
ii. The trial judge erred by finding there was proof beyond a reasonable doubt that Ms. Tracey had been driving a vehicle;
iii. The trial judge erred in admitting the evidence of the breath samples and should have excluded them because there were no reasonable and probable grounds to arrest Ms. Tracey for impaired driving.
[3] I ruled that there was no error by the trial judge in permitting the Crown to recall P.C. Wiltshire and no prejudice to the accused by his decision to do so. I gave oral reasons on this issue, immediately following the submissions of appellate counsel. Contrary to the assertion in the appellant’s factum, the trial judge did not permit the Crown to re-open its case in order to file the original certificates of analysis. The trial judge merely permitted the Crown to recall P.C. Wiltshire in order to file those documents. This was before the Crown had closed its case. There were no witnesses in between who were at all related to this issue and I found no prejudice to the defence in permitting this witness to be recalled. The Crown could easily have called a different witness (e.g. the breathalyzer technician) to prove the documents prior to closing its case, and there would be no basis for any objection by the defence. I ruled that this was an exercise of discretion by the trial judge on a procedural point involving trial management. He exercised that discretion judicially and there was no basis to interfere.
[4] At the conclusion of the argument from both counsel on the other two grounds of appeal, I ruled that there was no merit in the “identification” ground of appeal, as there was clear evidence Ms. Tracey had been driving the vehicle that had been involved in an accident approximately an hour earlier. With respect to the Charter issue, I reserved my decision on whether the officers who made the arrest and demand for breath samples had reasonable and probable grounds to do so. However, I advised that even if the officers did not have the requisite grounds, I would uphold the trial judge’s decision to admit the evidence under s. 24(2) of the Charter. Accordingly, I dismissed the appeal for written reasons to follow, which reasons would address the identification and Charter breach grounds of appeal. Those reasons are set out below.
B. THE IDENTIFICATION ISSUE
The Grounds of Appeal
[5] Mr. Lent, for the appellant, submits that the trial judge’s finding that he was satisfied beyond a reasonable doubt that Ms. Tracey had been driving her white Mercedes that night and had hit parked vehicles on Queen St. approximately an hour before her arrest is an unreasonable finding of fact. Mr. Lent characterizes that finding as being entirely dependent upon the identification evidence of the eye-witness, Rodrigo Anderson. He argues that the trial judge gave undue weight to the evidence of that witness. Mr. Lent also points to a number of specific factual findings by the trial judge, which he submits are inconsistent with the evidence. Although Mr. Lent concedes that the trial judge correctly stated the applicable law, he argues that the trial judge failed to apply those legal principles in reaching his decision.
The Evidence
[6] On June 25, 2019, Rodrigo Anderson lived in a second-floor apartment on the south side of Queen St. near Palmerston Street. He testified that at approximately 4:40 a.m., while in his apartment, his attention was drawn by the sound of a “violent crash” on Queen Street. He went to the window overlooking Queen St. and saw a white Mercedes pressed up against two parked cars, in what he described as a “mangle of cars”. He could see the driver of the Mercedes and described her as a female with dark brunette, shoulder length hair, wearing a black short-sleeved shirt. He could only see her from mid-chest up because she was seated behind the steering wheel. It was just before dawn so there was some natural light, and the area was also lit by street lights. He said he was satisfied that she was Caucasian but could not tell the precise tone of her skin because the street lighting had a bit of a yellow tone to it. He said she was about 20-30 years old. Mr. Anderson reported that he had a very good view and that the driver of the vehicle was about 10-12 metres directly in front of his location and that he was about 20 metres above, with no obstructions between him and the driver. As he watched, the driver was trying to turn the car back on.
[7] Mr. Anderson got dressed and went down to the street, by which time the white Mercedes had left the scene. He saw that the two parked cars that had been hit were a Jeep and a pickup truck, both of which belonged to his neighbour Carl Cassell. Mr. Anderson estimated that the time from when he heard the crash to when the white Mercedes left was about 30-60 seconds. He said that his total time actually viewing the Mercedes was 20-25 seconds. Mr. Anderson called Mr. Cassell who also came out to the street. Mr. Cassell called 911.
[8] Mr. Anderson and Mr. Cassell both testified that after about 15 minutes waiting on Queen Street they decided to follow the tracks the white Mercedes had made when it left. It was apparent there had been damage to the Mercedes and that it was dragging some piece of metal along the street as it drove away, leaving scrape marks on the pavement. They followed the tracks along Queen Street all the way to Ossington Avenue and turned north and then south on Shaw Street. Mr. Anderson spotted the white Mercedes about 50 metres south of Queen on Shaw. A woman he recognized to be the driver was standing about 3-4 metres from the Mercedes. She was with a man and a small dog. Mr. Anderson and Mr. Cassell confronted this woman, and Mr. Cassell recorded some of that exchange on his cell phone until the woman was pulled away by her male companion and they walked towards King Street.
[9] The woman initially tried to strike a deal with Mr. Anderson and Mr. Cassell, stating that “we can fix this.” She was very upset. She then told them that she had just discovered that her vehicle had been stolen and that she herself had been the subject of a sexual assault.
[10] Mr. Anderson believed the woman to be impaired, based on the way she was speaking and staggering and the smell of alcohol on her breath. He said that he worked at a bar and “you get to know who is drunk”. Mr. Cassell also testified that he believed the woman to be inebriated. He described her as slurring her words and “jittery”. He said that he has worked in the restaurant industry for 20 years and deals with inebriated people on a weekly basis.
[11] There was damage to the front end of the Mercedes, which had clearly been involved in a recent collision. When police officers arrived, they checked the license plates and learned that the registered owner was Ms. Tracey and that her home was a short distance from where the car was parked.
[12] When police officers arrived at the scene, Mr. Cassell and Mr. Anderson provided a description of the woman they saw and her male companion, and provided the officers with photographs of them taken on their phones. At least one of the officers also saw video of the woman as she interacted with these two civilians. P.C. Wiltshire and P.C. Gordon then went to Ms. Tracey’s address and spoke with her. It is clear that the woman they spoke to was Cailin Tracey, and that she was also the woman Mr. Cassell and Mr. Anderson found beside the Mercedes on Shaw Street. The man who was with her on Shaw St. and the small dog were also with her at her residence. The officers testified that before they could say anything to Ms. Tracey she blurted out, “I made a bad choice, it was my fault, I hit those cars, I should have stayed there.”
[13] Following her arrest for impaired driving and leaving the scene of an accident,[^1] Ms. Tracey was placed in the police car. She was fully cautioned and advised of her rights. She then made various spontaneous utterances including that she “had a couple of drinks” and that she had “fucked up” and now may be “locked up” or “owe a lot of money” and that she “wish[ed] she had handled the situation differently”.
The Findings of the Trial Judge
[14] The trial judge started his analysis on this issue by stating the legal principles involved and in particular noting the frailties of eye-witness identification of strangers. This is conceded to be an accurate summary of the law. The trial judge summarized the positions of both parties and then stated that in considering this issue, he drew “on evidence of Mr. Rodrigo Anderson, who was an impressive witness” and summarized that evidence. The trial judge then held:
I find that there is ample evidence to prove beyond a reasonable doubt that the defendant was the person involved in the collision. Although a stranger, this was not just a fleeting glimpse or a limited time in which to observe, but something more substantive than that by Mr. Anderson. Further, the sighting was not in circumstances of particular stress. Third, the setting was conducive to accurate observation. Fourth, the description was not general, generic, or vague, but relatively and sufficiently detailed and specific. Fifth, it was corroborated in large measure, or at least sufficiently, by Mr. Cassell. Sixth, the civilian, Mr. Anderson committed his observations and description to the photographs and the video taken, and referred them to the police in a timely manner. Seventh, there were no intervening circumstances capable of tainting or contaminating the independence of the identification from the time of the initial sighting and the rendering of the descriptive account to the police, despite the approximate 45 minute hiatus.
It should be noted that this is all in the context of being approximately at 6:00 a.m., with virtually no one else in the area proximate to the subject vehicle. This was a woman of similar age, wearing black, in distress, and attempting to negotiate with two males. This is more than a speculative coincidence.
Analysis
[15] I will deal first with the appellant’s argument that specific factual findings by the trial judge were inconsistent with the evidence.
(a) The trial judge held that Mr. Anderson’s opportunity to see the driver of the car was “not a fleeting glance”. The appellant submits that because Mr. Anderson acknowledged in cross-examination that his actual observations of the driver were about 20-25 seconds, this is a fleeting glance. The trial judge correctly summarized the evidence on this point. He stated that Mr. Anderson observed the driver for 25 seconds, which he described as a “brief opportunity” but more substantive than a “fleeting glance.” He also noted that Mr. Anderson was specifically watching this person in order to identify her. Staring at a person for 25 seconds is, as the trial judge found, more than a fleeting glance. The trial judge was fully aware of the length of time involved and took it into account. There is no error.
(b) The trial judge held that the Mr. Anderson’s observations of the driver were “not in circumstances of particular stress”. The appellant submits this is wrong. I agree with the trial judge. The witness was in no danger and was observing this woman from the window of an upstairs apartment overlooking the street. He did not see the crash, he merely heard it. His own property was not involved. He was merely watching this person attempt to restart her car after having crashed into parked vehicles. The trial judge correctly stated that this was not a situation of “particular stress”.
(c) The appellant also took issue with the trial judge’s statement that the setting was “conducive to accurate observation”. Again, I agree with the trial judge. It is clear what the trial judge meant by that remark as he described what those conditions were, including the lighting conditions, the witness’s vantage point, and the time period and distances involved. The white Mercedes was heading westbound on Queen St. and Mr. Anderson’s apartment is on the south side of that street, so the driver of the white Mercedes would be directly in his line of sight. He said there were no obstructions and lots of light. Those were the conditions the trial judge took into account and it is fair to describe those conditions as conducive to accurate observation. There is no error.
(d) The appellant also challenged the accuracy of the trial judge’s finding that the description Mr. Anderson gave of the driver was “not general, generic, or vague, but relatively and sufficiently detailed and specific”. I note that the trial judge did not say that the description was detailed and specific, but only that it was relatively and sufficiently so. Mr. Anderson said his observations while watching out his window, he could tell that the driver was a woman, 20-30 years old, wearing a black short-sleeved shirt, and having “just over shoulder length hair”, which he described as “dark brunette, black” (explaining that he is a hairdresser and this would be the term used in his profession for that hair colour). He said her skin tone was “Caucasian definitely” but that he could not tell how dark she was because of the yellow tone in the street lighting. I agree with the trial judge’s observation that this goes beyond vague or generic.
(e) The trial judge stated that Mr. Anderson’s evidence “was corroborated in large measure, or at least sufficiently, by Mr. Cassell”. The appellant submits this is contradicted by the evidence, which is clear that only Mr. Anderson saw the driver and that the white Mercedes was gone by the time Mr. Cassell came down to the street. The appellant is correct that Mr. Cassell did not see the driver of the Mercedes at the scene of the collision. That, however, cannot be the corroboration to which the trial judge was referring. In his summary of the evidence it is clear that he appreciated when Mr. Cassell arrived and what his role was. The corroboration to which he refers must be taken as a reference to the statements made by Ms. Tracey on Shaw Street and her demeanour at that time. Those statements, such as trying to negotiate with them that the authorities not be called, and suggesting that her car had been stolen and that she had been sexually assaulted, support the Crown’s theory that she was the driver of the vehicle. The trial judge did not find that all of what Mr. Anderson said had been corroborated, but only that there was “sufficient” corroboration. Given the proximity of that statement to his summary of the evidence, I find that he could not have completely misapprehended the evidence in that regard. I do not find that this statement undermines the trial judge’s conclusion that he was satisfied beyond a reasonable doubt that Ms. Tracey had been driving the car.
(f) The trial judge held that “there were no intervening circumstances capable of tainting or contaminating the independence of the identification from the time of the initial sighting and the rendering of the descriptive account to the police, despite the approximate 45 minute hiatus”. The appellant submits that this is an error by the trial judge because the act of the witness in taking pictures of Ms. Tracey on Shaw Street in the vicinity of the white Mercedes is an intervening event that taints his evidence. I do not agree. There were no intervening events from when Mr. Anderson saw the woman in the car at the collision site and when he saw the woman standing next to the same make and colour of car with a damaged front end. He recognized her as the driver stating that she had the “same T-shirt, same hair”. It was because he recognized this woman, and because she started to move away when he started taking pictures of the car, that he took pictures of her as well. I find no error by the trial judge with respect to this aspect of his analysis.
(g) The trial judge also noted that this confrontation with Ms. Tracey on Shaw St. was at about 6:00 a.m. when there was “virtually no one else in the area proximate to the subject vehicle”. The appellant takes issue with this characterization and points out that there was evidence that joggers were out. Mr. Anderson testified that when he spotted the white Mercedes parked on Shaw St. the only people there were the woman he recognized as the driver and a tall man who was with her and who was talking on his phone. They were standing right in front of the car and they were obviously together. At one point the man referred to her as “darling”. Mr. Anderson testified that this would have been at about 5:25 a.m. Mr. Anderson called Mr. Cassell to come to the area (as he had been searching north of Queen). When Mr. Cassell arrived, he started filming the interactions with Ms. Tracey. He said it was at this time that she began speaking more loudly and saying that she had been sexually assaulted, which concerned him as people were jogging north on Shaw St. and he was concerned they might misunderstand the interaction. There is nothing about that evidence of an occasional jogger running by that undermines the trial judge’s comment that it was “more than speculative coincidence” that there was nobody else was around and the person near the car happened to be a woman of similar age, wearing similar clothing as described by the eyewitness, and she was in obvious distress and trying to negotiate her way out of it.
[16] In conclusion, I find no merit to any of the appellant’s submissions about the inaccuracy of the factual findings made by the trial judge on this issue. Further, in addition to the eyewitness identification, there was considerable other circumstantial evidence pointing to Ms. Tracey as the driver of the car. The white Mercedes had considerable damage to its front end as a result of colliding with the parked Jeep and left a trail of scrape marks along Queen St. as it fled from the scene. The car was found a very short distance from that point, and Ms. Tracey was standing next to it at the time. This was also a fairly short time from when the collision occurred, approximately 45 minutes. There was virtually nobody else about. Ms. Tracey was the registered owner of the vehicle and it was parked a short distance away from her residence. When talking to Mr. Anderson and Mr. Cassell, Ms. Tracey already seemed aware of the damage done to the other cars as she tried to negotiate with them and told them that her car had been stolen. Further, in her own statements to the police, both blurted out before she could be advised of her rights and after she had been fully cautioned, Ms. Tracey made statements that could only be consistent with her having been the driver of the vehicle.
[17] The Crown’s case with respect to Ms. Tracey being the driver of the car was extremely strong. The trial judge found on this evidence that he was satisfied beyond a reasonable doubt that Ms. Tracey was driving the car when it collided with the parked cars on Queen Street. He made no error of law, and did not misapprehend any of the evidence. His findings are solidly rooted in the evidence before him and entitled to deference on appeal. This ground of appeal is therefore dismissed.
C. THE CHARTER ISSUE: REASONABLE AND PROBABLE GROUNDS
The Grounds of Appeal
[18] The appellant submits that the trial judge erred in finding that P.C. Wiltshire had reasonable and probable grounds to arrest Ms. Tracey for impaired driving and in concluding that there had been no breach of s. 8 of the Charter. Further, if the arrest was unlawful, so too was the demand for the breath sample, and that evidence should have been excluded. The focus of the appellant’s argument is on whether there was an objective basis for the officer’s subjective belief that Ms. Tracey was impaired by alcohol.
The Decision of the Trial Judge
[19] The trial judge started his analysis of this issue with a review of the applicable legal principles. He correctly stated the law, including that the test for what constitutes “reasonable and probable grounds” has both a subjective and objective element. He noted that police officers are often required to make these decisions quickly based on available information, which can include hearsay and incomplete sources. He also stated that this is not a mathematical exercise or “score card” in which specific indicia must be present or counted up and that “the absence of some indicia that are often found in impaired drivers does not necessarily undermine a determination of reasonable and probable grounds”. The trial judge referred to the Stellato[^2] test, noting that extreme impairment is not required, to establish impaired driving. Rather, any degree of impairment, from slight, to great is sufficient to support reasonable and probable grounds to arrest. The appellant takes no issue with any of the legal principles articulated by the trial judge.
[20] The trial judge then set out the positions of both the defence and Crown. It is clear that he understood completely the thrust of the defence position.
[21] It was P.C. Wiltshire who made the decision to place Ms. Tracey under arrest. The trial judge reviewed his evidence and commented favourably on P.C. Wilshire’s candour, finding that he “testified honestly, almost to a fault”. He accepted this officer’s evidence that he subjectively believed Ms. Tracey to be impaired by alcohol at the time she was driving the white Mercedes and hit the parked cars on Queen Street.
[22] The trial judge also found that the grounds relied upon by P.C. Wiltshire were “sufficient to pass muster objectively”. He noted that neither P.C. Wiltshire nor P.C. Gordon detected any smell of alcohol on Ms. Tracey’s breath. Also, neither of them found that she was unsteady on her feet, fumbling, or slurring her words. However, he accepted the evidence of P.C. Wiltshire who testified that in his experience as a police officer and as a qualified standard field sobriety test technician, he had seen people who had consumed incredibly high amounts of alcohol and still be very high functioning. In his experience, a person could be extremely impaired without displaying the common indicia. The trial judge held that it was appropriate to take the officer’s experience into account. He also noted that both lay witnesses believed Ms. Tracey to be impaired and that he considered these witnesses to have “no agenda or biases”. Both lay witnesses had experience working in bars and restaurants and were used to drunk patrons and both thought Ms. Tracey was extremely impaired. He said that the officer relied on Ms. Tracey’s extreme emotional state, which the officer found to be consistent with impairment by alcohol. Also, the trial judge held that the officer took into account the fact that Ms. Tracey had been in an unexplained car accident and had fled the scene. The officer observed the damage to her car and to the truck driven to the scene by Mr. Cassell.
[23] Taking all of this into account, the trial judge found that the officer had both subjective and objective grounds to believe that Ms. Tracey had been operating a vehicle while impaired by alcohol. Therefore, he found no breach of her rights under s. 8 of the Charter.
Analysis
[24] The trial judge had a reasonable basis for concluding that P.C. Wiltshire was telling the truth that he believed Ms. Tracey was the driver of the car at the time of the collision on Queen St. and that her ability to drive at that time was impaired by alcohol. This is a finding of fact that is entitled to deference. Clearly, the officer had a subjective belief that he had reasonable and probable grounds to arrest. The only real issue is whether objective grounds existed.
[25] There were clear objective grounds for believing that Ms. Tracey had been the operator of the vehicle. She had been identified by a witness at the time of the collision. She was standing next to the car when Mr. Anderson found it and she again fled the scene when confronted. The person Mr. Anderson saw and photographed was clearly the same person who came to the door of the condo when the officers arrived and identified herself as Ms. Tracey. She then made a number of admissions before the officers could stop her, including: “I shouldn’t have left”; “it was my fault”; I should have stayed”; and “I made a bad choice”.
[26] In my view, there was also ample evidence for the trial judge to conclude that there was an objective basis for the officer’s subjective belief that he had reasonable and probable grounds to arrest. I do not accept the appellant’s submission that the trial judge committed any error in considering the evidence of the two lay witnesses in that regard. They passed on their observations to the officers. The fact that Mr. Cassell’s vehicles had been damaged does not render him a biased witness on the issue of whether Ms. Tracey was impaired, and that is even more the case for Mr. Anderson. The trial judge found them to be fair witnesses and that determination is entitled to deference.
[27] The trial judge did not err by taking into account the experience of P.C. Wiltshire with respect to severely inebriated people who show none of the standard indicia of impairment. It is appropriate to look at the objective basis for the arrest through the lens of a person with that same experience. The test is whether a “reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest.”[^3] The absence of any smell of alcohol at the condo was explained by the officer as easily attributable to the passage of time since Mr. Anderson made the observation on Shaw Street. The officer also noted that Ms. Tracey could easily have rinsed out her mouth or brushed her teeth during the intervening time.
[28] While the extreme emotional state might be the result of an anxiety disorder, it is also, as noted by the officer and accepted by the trial judge, a possible indication of impairment. Likewise, the unexplained collision and Ms. Tracey fleeing from the scene, even with severe damage to her own car, are also potentially attributable to her being impaired at the time.
[29] No single one of these factors is determinative, nor is the absence of some of the standard indicia determinative. Further, the fact that P.C. Gordon did not form his own belief at the time, but rather deferred to the senior, more experienced officer does not alter that conclusion. In order to establish an objective basis for reasonable and probable grounds to arrest, it is not necessary to show that there would be unanimity as to that conclusion. In my view, when all of the evidence is looked at in context, the trial judge’s conclusion that there was an objective basis for the arrest is unassailable.
[30] Accordingly, I find no error in the trial judge’s determination that there had been no breach of s. 8 of the Charter.
D. SECTION 24(2) OF THE CHARTER
[31] My determination that the trial judge committed no error in finding Ms. Tracey to be the driver of the vehicle and in finding no breach of her s. 8 Charter rights is sufficient to dispose of this appeal. However, for the sake of completeness, I will deal with the trial judge’s alternative finding that, even if he had found a Charter breach, he still would have admitted the evidence under s. 24(2). The appellant submits that the trial judge failed to provide adequate reasons for his s. 24(2) decision and that, if I found the trial judge had erred with respect to the s. 8 Charter breach, I should disregard his s. 24(2) ruling and order a new trial.
[32] I disagree. Viewed in the context of the whole of the reasons, I find the trial judge’s reasons to be sufficient for the purpose of review.
[33] The trial judge started by summarizing the principles established by the Supreme Court of Canada in R. v. Grant,[^4] as follows:
Although I have found there to be no Charter breaches in this case, if I am found to be in error, for the fullness of the record, I will briefly address the analysis in the well known, at least to counsel and the Court, case of Grant, and the three factors: one, the seriousness of the Charter-infringing state conduct; two, the impact of the breach on the Charter protected interests of the accused; and three, society’s interest in an adjudication on the merits.
[34] The trial judge then went on to summarize the positions taken by the defence and the Crown and held:
On balancing these factors which is also a factor in the Grant analysis, I find that any evidence would be saved. The seriousness is at the low end of the spectrum, which favours inclusion. The impact was minimal at best, clearly favouring inclusion. I do find the public interest favours inclusion as well.
I would have much more to say had there been a real contest on any breaches. I will spare any further analysis of 24(2), although I had prepared at least two, if not three more pages of analysis.
[35] Obviously, as the trial judge himself stated, the reasons could have been more detailed. However, the concluding paragraphs setting out the decision itself must be read in the context of the rest of section of the reasons devoted to the section 24(2) issue (almost three full pages of the transcript) and the reasons taken as a whole (39 full pages of the transcript, which includes extensive findings of fact).
[36] In R. v. R.E.M. the Supreme Court of Canada emphasized the importance of taking a contextual approach to determining the sufficiency of reasons, stating:
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.[^5]
[emphasis in the original]
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.[^6]
[emphasis added]
[37] The trial judge correctly stated the law, identified the three factors described in Grant, and made findings on each of those three factors. On the first factor (seriousness of the breach), the trial judge found that the “seriousness was at the low end of the spectrum”. Looked at in context, it is clear that the trial judge had adopted the position of the Crown on this point. In summarizing that position just two paragraphs earlier, the trial judge had stated:
The Crown, on the other hand, submits that the seriousness of the breaches, if there were any, were neutral at best, and at the low end of the spectrum. They were minor and inadvertent breaches, if at all. The Crown rejects the defence position that this was reckless, or wilful, or negligent behaviour on the part of either of the officers. Their collective and individual efforts were nothing short of good faith actions and should, therefore, favour admission of the breath tests.
[emphasis added]
[38] In addition, it is clear from the trial judge’s reasons on reasonable and probable grounds to arrest that he considered the arresting officer to have acted in good faith and in the honest belief that Ms. Tracy was impaired. The only real issue was whether there were objective grounds for that belief in the absence of the usual indicia.
[39] Therefore, looked at in context, the basis for the trial judge’s determination that any breach was at the low end of the spectrum is readily understood. It is also a reasonable finding based on the evidence.
[40] At the second stage the trial judge found that the impact of the breach on the accused was “minimal at best”. Again, I find that it is clear from the context that the trial judge agreed with the Crown submission on this point. Crown counsel pointed to accepted case law that “for drinking/driving matters, obtaining breath samples is minimally intrusive on the person”. This case law would have been well-known to the trial judge.[^7] He is presumed to know the law on these issues that are before him on a regular basis and is not required to regurgitate these principles in every decision.[^8]
[41] Further, both in his summary of the Crown’s position and in his findings of fact elsewhere in the decision, the trial judge noted that the officers were professional and courteous to the complainant throughout. P.C. Wiltshire interrupted the complainant’s incriminating statements, blurted out when she came to the door, in order to explain why they were there and to advise her of her rights. She told them she had an anxiety disorder and asked that she not be handcuffed, and so they escorted her to the scout car without handcuffs. P.C. Gordon returned to her home to pick up her inhaler, at her request. The intrusion of being taken to the police station and required to blow into a breathalyzer was, as the trial judge stated, “minimal at best” in all the circumstances.
[42] Finally, with respect to the third factor, and having said that the first two factors favoured including the evidence, the trial judge stated that “the public interest favours inclusion as well”. The trial judge clearly knew he was required to weigh these factors, having previously referred to this aspect of the test in Grant. On this point, the trial judge summarized the Crown’s position on the public interest in having cases decided on their merits as including the fact that Ms. Tracey had been driving a vehicle with a blood alcohol limit that was more than twice the legal limit and that, while doing so, she collided with parked cars on Queen St., causing substantial damage. To that, I would add that she then fled the scene of the accident.
[43] In my view, the basis for the trial judge’s conclusion that all three Grant factors favoured inclusion of the evidence is readily apparent when viewed in context with the whole of his reasons. It is inevitable that he must therefore have concluded that public confidence in the administration of justice would be jeopardized by excluding objective evidence of this nature in all the surrounding circumstances. I find the reasons sufficient to permit appellate review. Further, all of the trial judge’s findings are reasonable based on the evidence at trial. There is no legal or other error justifying interference with his conclusions in that regard. As stated by the Supreme Court of Canada in Grant:
The weighing process and balancing of these concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision.[^9]
[44] Finally, having reviewed the whole of the record including the evidence at the submissions of counsel, I would have come to the same conclusion as the trial judge, for the same reasons he did. Thus, even if the reasons of the trial judge were insufficient, I find that there was no substantial wrong or miscarriage of justice and that it is appropriate to apply the curative provision under s. 686(1)(b)(iii) of the Criminal Code.
E. CONCLUSION
[45] Accordingly, the appeal is dismissed.
Molloy J.
Released: February 2, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CAILIN TRACEY
Defendant/Appellant
REASONS FOR DECISION
Molloy J.
Released: February 2, 2022
[^1]: Although Ms. Tracey was charged with leaving the scene of an accident, on the date fixed for trial that information could not be found and the crown elected to proceed without it. Accordingly, that charge was withdrawn. [^2]: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont.C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. [^3]: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, at p. 324; R. v. Gundy, 2008 ONCA 284 at paras. 42-43. [^4]: R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353 (“Grant”). [^5]: R. v. R.E.M. [2008] 3 S.C.R. 3, 2008 SCC 51 at para. 37 (“R.E.M”). [^6]: Ibid, para. 57. [^7]: R. v. Manchulenko, 2013 ONCA 543; R. v. Jennings, 2018 ONCA 260. [^8]: R.E.M. at para. 45. [^9]: Grant, at para. 127.