Her Majesty the Queen v. Kweku Kuffuor

COURT FILE NO.: 18-A12797 DATE: 20220208 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

KWEKU KUFFUOR Appellant

COUNSEL: Moiz Karimjee, for the Crown Self-represented

HEARD: January 28 and 31, 2022

FINAL REASONS ON SUMMARY CONVICTION APPEAL Aitken J.

Nature of Proceedings

[1] On January 18, 2022, I released my reasons for summarily dismissing Mr. Kuffuor’s summary conviction appeal to the extent that it was grounded on an allegation of incompetence or ineffectiveness of trial counsel (R. v. Kuffuor, 2022 ONSC 395). In those reasons, I reviewed the history of the case, the evidence tendered at trial, and the fresh evidence that Mr. Kuffuor asked the court to consider for that aspect of his appeal. Those portions of my reasons relating to the history of the case and the evidence tendered at trial form part of these reasons dealing with the balance of Mr. Kuffuor’s appeal.

[2] Before I deal with the further grounds of appeal raised by Mr. Kuffuor, I will deal with a preliminary matter that Mr. Kuffuor raised between the last court appearance on January 13, 2022 and the court appearance on January 28, 2022, namely, that I recuse myself from hearing this appeal due to a reasonable apprehension of bias.

Motion for Recusal

[3] After receiving the Partial Reasons on Summary Conviction Appeal released on January 18, 2022, Mr. Kuffuor sent a notice to the court asking that I “reconsider” my decision. As well, on January 21, 2022, he filed a “Conflict of Interest Form” with the court asking that I recuse myself because:

The judge was previously tied to my divorce hearing and worked my ex.

The judge has lied on a Nov. 22, 2021 hearing stating they never received documents to aid the Crown.

[4] In further emails that Mr. Kuffuor sent to the Trial Coordination Office at the Court House and to Crown counsel, Mr. Kuffuor alleged that at a court appearance on November 22, 2021, I lied when I had indicated that I had not received any materials relating to this file in preparation for an appearance on that date. Mr. Kuffuor also alleged that I had “yelled and screamed” at him at a January 13, 2022 hearing to stop him from finishing an argument he was trying to raise about the conduct of the arresting police officer. Additionally, Mr. Kuffuor alleged that the only reason why there was a hearing on January 13, 2022 was for his trial counsel to be on the stand for questioning and that he was never given the opportunity to question her. Finally, in various emails, Mr. Kuffuor has alleged that “nepotism”, “prejudice”, and “racism” are rampant in the criminal justice system and that I am a willing participant in all.

Legal Principles

[5] Before considering Mr. Kuffuor’s allegations, I will repeat a summary of the law relating to reasonable apprehension of bias that I provided in Halpin v. Thibault, 2019 ONSC 6879, at paras. 81-86:

Courts must be held to the highest standard of impartiality (R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 92; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 59, 76). There is a strong presumption of impartiality that applies to judges, and the bar to establish that a reasonable apprehension of bias exists is a high one (R.D.S., at para. 33; Wewaykum, at para. 59; and Martin v. Sansome, 2014 ONCA 14, 314 O.A.C. 375, at para. 32). The onus of demonstrating a reasonable apprehension of bias lies with the person who is alleging its existence (R.D.S., at para. 114; Wewaykum, at para. 59).

In R.D.S., at para. 106, Cory J., quoting from R. v. Bertram (1989), 8 W.C.B. (2d) 694 (H.C.), accepted the following definition of bias:

A leaning, inclination, bent or predisposition towards one side or another or a particular result. In its application to legal proceedings, it represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case.

In Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-395, de Grandpré J. set out the test for finding a reasonable apprehension of bias:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information … [The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude …

The grounds for this apprehension must, however, be substantial, and I … refus[e] to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

As has been confirmed in numerous cases, not only is a trial judge entitled to intervene in the trial process, but he or she has an obligation to intervene when appropriate to ensure that justice is done in substance and appearance (R. v. Murray 2017 ONCA 393, 138 O.R. (3d) 500, at para. 91). Valid reasons to intervene include:

…to focus the evidence on issues material to a determination of the case. To clarify evidence as it has been given and is being given. To avoid admission of evidence that is irrelevant. To curtail the needless introduction of repetitive evidence. To dispense with proof of the obvious or uncontroversial. To ensure the way that a witness answers or fails to respond to questions does not unduly hamper the progress of the trial. And to prevent undue protraction of trial proceedings.

(Murray, at para. 92, quoting Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, at paras. 233-234, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 91, 276 O.A.C. 398n. See also Martin, at paras. 33-34.)

When undue interference or intervention is raised as a ground of appeal, the fundamental question for the appeal court is whether the interventions, considered cumulatively, led to or resulted in an unfair trial or the appearance of an unfair trial (Murray, at paras. 96-97). This question must be considered through the eyes of a reasonable person present throughout the trial.

Judges are expected to conduct proceedings in a courteous and civil manner. They are expected to remain patient and to avoid expressions of annoyance. However, isolated expressions of impatience and annoyance by a trial judge as a result of frustration do not necessarily mean that the proceedings are not being conducted in a fair manner (Martin, at para. 37, quoting Chippewas, at para. 243). On the other hand, incidents which when considered in isolation may be of no consequence can combine to create an overall appearance of bias when they are considered cumulatively in the overall context of the proceedings (R. v. Stewart (1991), 62 C.C.C. (3d) 289 (Ont. C.A.), at p. 320).

Conflict of Interest

[6] In regard to an alleged conflict of interest, the only information Mr. Kuffuor offered was that, at some point in the past – he estimated at least five years ago – I was involved somehow as a judge in a custody dispute between Mr. Kuffuor and his spouse, a person who apparently worked at the Ottawa Court House. As I indicated to Mr. Kuffuor on January 28, 2022, I have no idea of the identity of his spouse and no recollection of Mr. Kuffuor and his spouse ever appearing before me. That is not to say that they did not; it is just to say that I have no memory of it. Mr. Kuffuor provided no documentation relating to his custody dispute with his spouse to establish that I was involved in some capacity during the court case. He provided no further information about how many appearances there might have been before me, what the issues were, and what the outcome of the litigation was. He provided no evidence as to the position his spouse occupied at the Court House and whether she is still an employee at the Court House. Finally, Mr. Kuffuor did not explain how the fact that I may have presided at another hearing where he was a litigant would disqualify me from hearing his summary conviction appeal. It requires more than a bald statement that, at some time in the past I was involved in some capacity in a custody case where he was a party, to create a reasonable apprehension of bias based on conflict of interest.

November 22, 2021 Appearance

[7] Mr. Kuffuor alleged that on November 22, 2021, when he and Crown counsel appeared before me during a day of criminal judicial pre-trials, I lied when I advised that I had not received any of his materials and that I treated him unfairly by not letting him tell me about the evidence he wished to tender on the appeal. Prior to the January 28, 2022 court appearance, Mr. Kuffuor asked me to approve his ordering of the transcript from the November 22, 2021 appearance at the court’s expense as evidence to support this allegation.

[8] As there was no record of any such appearance in the criminal judicial pre-trial schedule, in my notes, or in the notes on the electronic tracking system for criminal matters, I made inquiries of court staff as to whether they could determine whether any appearance occurred on that date. I was eventually advised that there was an audio recording of a brief court appearance in this matter on that date. I listened to that recording.

[9] On November 22, 2021, I explained to Mr. Kuffuor that I was surprised that he and Crown counsel were before me, as Mr. Kuffuor’s case was not on the schedule and another case was slotted at that time. I advised him that nothing of any substance could be accomplished on that date because not only did I not have the time to deal with his matter but also I had not been provided access to the documents he had filed electronically with the court. Crown counsel advised that they were there at Mr. Kuffuor’s insistence as a last-minute add-on to my regular criminal judicial pre-trial list at a time already assigned to another case. Mr. Kuffuor advised that he wanted me to make rulings as to the admissibility or inadmissibility of certain evidence on his appeal. I advised Mr. Kuffuor that evidentiary rulings were not made at judicial pre-trials for summary conviction appeals; all that is done is scheduling and clarification of procedures. Determinations as to the admissibility of evidence would be done by the judge when hearing the summary conviction appeal. I also advised Mr. Kuffuor that, in any event, I had not been provided with any materials relating to his case. For these reasons, we simply confirmed the next scheduled appearance for his summary conviction appeal.

[10] As I advised Mr. Kuffuor on January 28, 2022, his case had not been on the criminal judicial pre-trial schedule for November 22, 2021. It is that schedule that my judicial assistant uses when she provides me with the links to the OneDrive or CaseLines electronic filing systems where documents filed with the court in criminal matters are stored and can be accessed as needed. In that Mr. Kuffuor’s case was not on the judicial pre-trial schedule for that day, my judicial assistant had not provided me with any links to the electronic court file for his case. Mr. Kuffuor’s allegation that I lied about not having his materials before me on November 22, 2021 is completely unfounded.

January 13, 2022 Appearance

[11] Mr. Kuffuor alleged that on January 13, 2022 I “yelled and screamed” at him to prevent him from finishing an argument he was trying to raise about the conduct of the arresting police officer. The audio recording of that court appearance shows that at no time did I yell or scream at Mr. Kuffuor. At all times he was treated in a respectful and civil fashion. If I intervened when he was speaking, it was to control the proceedings so that only relevant evidence was tendered or submissions made, to curtail repetitiveness, or to foster the efficient use of court time.

[12] Mr. Kuffuor also complained that, on January 13, 2022, he was not given the opportunity to question his trial counsel. In the fall of 2021, at the request of Crown counsel, January 13, 2022 was scheduled for the examination and cross-examination of Mr. Kuffuor’s trial counsel for the purpose of obtaining evidence relevant to his ground of appeal of incompetency of counsel. On January 3, 2022, Crown counsel sent the following email to Mr. Kuffuor:

I will be applying for your claim to be dismissed, without hearing from your counsel first, unless you wish to call your counsel as part of your case, as your evidence has not established the claim of incompetence of counsel.

[13] Thus, as early as January 3, 2022, Mr. Kuffuor was advised in writing that, after having reviewed the extensive written record in the file of Mr. Kuffuor’s trial counsel, Crown counsel would not be calling Mr. Kuffuor’s trial counsel to testify on January 13, 2022. If Mr. Kuffuor wished to question his trial counsel, he would have to call her as his witness on January 13, 2022. Mr. Kuffuor did not do that. Mr. Kuffuor was also aware on January 3, 2022 of the intention of Crown counsel to ask the court on January 13, 2022 to summarily dismiss Mr. Kuffuor’s appeal based on the incompetency of counsel.

[14] On January 13, 2022, Crown counsel proceeded with his motion asking that Mr. Kuffuor’s appeal – to the extent it was based on the incompetency of counsel – be summarily dismissed. During his submissions, he indicated that Mr. Kuffuor’s trial counsel was on standby and could make herself available to testify if Mr. Kuffuor wanted. Mr. Kuffuor did not take up that offer. During the hearing, he did not insist that he wanted his trial counsel to testify. The hearing proceeded and on January 18, 2022 I rendered my decision on this aspect of the appeal.

Nepotism, Prejudice, Racism

[15] Throughout these proceedings, Mr. Kuffuor in various emails and communications has alleged that the criminal justice system is rampant with nepotism, prejudice, and racism and seems to be suggesting that the way he has been treated during his summary conviction appeal proceedings displays these traits. There is no foundation whatsoever to these assertions. Throughout these proceedings, Mr. Kuffuor has been treated with the utmost civility and patience by court staff, by Crown counsel, and by the court, as is evident in the audio recordings of the proceedings and in the email responses from court staff and from Crown counsel to the innumerable emails and attachments that Mr. Kuffuor has been sending them on a regular basis.

[16] It is significant that, at the conclusion of the hearing on January 13, 2022, Mr. Kuffuor stated: “I know it’s been important that the appearance of the court being fair and impartial, is. And I find you to be a fair and impartial type person”, to which I replied: “I thank you, that is certainly the intention of all of us here … to do our job, which is to treat everybody equally, and to be fair and impartial when considering these cases.”

Conclusion

[17] Mr. Kuffuor has failed to meet the onus of demonstrating a reasonable apprehension of bias. A “reasonable and right-minded person”, being fully informed of the court process and the progression of Mr. Kuffuor’s case through the court, would not conclude, after considering all of the above, that there is a reasonable apprehension of bias. I will now deal with the balance of Mr. Kuffuor’s appeal.

Standard of Review

[18] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the Supreme Court of Canada set out the standard of review applicable on appeals from judges’ orders:

• on questions of law, the standard is correctness (at para. 8);

• on questions of fact, the standard is palpable and overriding error (at para. 10); and

• on questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error. More specifically, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error (at para. 36).

Remaining Grounds of Appeal

General Comments

[19] During the course of this appeal, it became clear that Mr. Kuffuor was taking the position that all of the information and documentation contained in the disclosure the Crown provided to trial Defence counsel in advance of Mr. Kuffuor’s trial should have been provided to the trial judge and taken into account by her in rendering her decision. That is not how things work. The Crown makes full disclosure to an accused of all relevant information or documentation it has available to it so that the accused understands the case he or she has to meet. The Crown chooses what it will tender in evidence at trial, subject to admissibility rulings by the court. Following consultation with the accused, Defence counsel decides how she will make use of the disclosure provided. It may be that some of that disclosure assists Defence counsel in cross-examining Crown witnesses. It may be that some of the disclosure provides options to Defence counsel regarding potential Defence witnesses. The disclosure may assist Defence counsel in arguing that there has been a breach of the accused’s rights under the Canadian Charter of Rights and Freedoms[^1] or in formulating or responding to other pre-trial motions.

[20] As is clear from the record of written communications between Mr. Kuffuor and his trial Defence counsel, the two of them reviewed and discussed the disclosure received from the Crown. Decisions were taken about the approach the Defence would take at trial. It was decided that certain arguments would be pursued and others would not. It was decided that Mr. Kuffuor would not testify in his own defence. It was decided that no other Defence witnesses would be called because trial Defence counsel was unaware of any that could provide helpful evidence for Mr. Kuffuor.

[21] This appeal does not present an opportunity for Mr. Kuffuor to second-guess the decisions taken by himself and his trial Defence counsel in regard to the evidence tendered at trial and basically have his case tried anew. That is not the nature of a summary conviction appeal. In the absence of a successful fresh evidence application, the judge on a summary conviction appeal takes the evidentiary record as it stands.

Fresh Evidence Application

[22] Mr. Kuffuor has filed both documents (e.g. Google maps, the OIPRD Report) and his own personal statements as to what did or did not happen on the night of his arrest as “fresh evidence” that he wants considered on this appeal. As was stated in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, fresh evidence will only be considered on appeal in limited circumstances.

• The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

• The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

• The evidence must be credible in the sense that it is reasonably capable of belief, and

• It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[23] Mr. Kuffuor cannot get beyond the first requirement for fresh evidence to be accepted on appeal. Prior to trial, Mr. Kuffuor and his trial Defence counsel had at their disposal all of the evidence that Mr. Kuffuor now asks this appeal court to admit and consider. Mr. Kuffuor’s trial Defence counsel, after consultation with Mr. Kuffuor, chose for tactical reasons not to tender this evidence at trial and made choices as to what she would use in her cross-examination of Crown witnesses. Now that the trial judge has found Mr. Kuffuor guilty, he cannot use the appeal process to rewind the clock and take a different approach to his defence in the hopes that it might be more successful.

[24] Furthermore, Mr. Kuffuor’s own evidence about the events of the night in question could have been provided at trial had Mr. Kuffuor testified in his own defence. He decided, upon the advice of his trial counsel, not to do so. He may regret that decision now, but he does not get a new trial as a result.

[25] As I have already determined in the reasons I released earlier regarding incompetency of counsel, Mr. Kuffuor did not persuade me that the advice his trial counsel provided him, the decisions she took regarding trial strategy, or her representation of him at trial amounted to incompetence by falling below the standard of reasonableness expected of criminal counsel. Many of the arguments Mr. Kuffuor advanced as additional grounds of appeal really amounted to his repeating his allegation that trial Defence counsel was incompetent – an issue upon which the court has already ruled.

[26] I will proceed to consider the grounds of appeal relating to alleged Charter breaches and the reasonableness of the verdict.

Reasonable and Probable Grounds for Arrest

[27] In R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250, Cory J. accepted the following description of “reasonable and probable grounds for arrest” provided by Scott L.J. in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329:

The power possessed by constables to arrest without warrant, whether at common law for suspicion of felony, or under statutes for suspicion of various misdemeanours, provided always they have reasonable grounds for their suspicion, is a valuable protection to the community; but the power may easily be abused and become a danger to the community instead of a protection. The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably.

[28] Cory J., in Storrey, went on to state, at p. 250:

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person, standing in the shoes of the police officer, would have believe that reasonable and probable grounds existed to make the arrest.

[29] The trial judge correctly articulated the test for the existence of reasonable and probable grounds, quoting extensively from Storrey. She reviewed the circumstances of the accident and the observations made by Officer De Souza Lima at the time. It was the trial judge’s role to assess the credibility of Officer De Souza Lima and the reliability of his evidence. She carefully reviewed his evidence, noted the challenges to it raised during his cross-examination by trial Defence counsel, and explained why she accepted the officer’s version of events. The trial judge accepted Officer De Souza Lima’s evidence that he believed he had reasonable and probable grounds on which to arrest Mr. Kuffuor for impaired driving.

[30] The trial judge went on to consider whether a reasonable person in Officer De Souza Lima’s shoes would have believed that he or she had reasonable and probable grounds to arrest Mr. Kuffuor for impaired driving, and she concluded that such an officer would have believed that, considering the circumstances and the evidence available at the time.

[31] In arriving at her decisions regarding the subjective and objective components of the test for reasonable and probable grounds, the trial judge carefully considered the arguments raised by Mr. Kuffuor’s trial Defence counsel as to why she should not accept Officer De Souza Lima’s evidence and as to why reasonable and probable grounds did not exist. The trial judge rejected those arguments and provided reasons for doing so. The trial judge made no palpable and overriding error in arriving at her conclusions.

Right to Counsel

[32] The trial judge decided that the implementational component of Mr. Kuffuor’s s. 10(b) rights under the Charter were breached because the choice of counsel was made for him by Officer De Souza Lima when he put Mr. Kuffuor into a booth and contacted duty counsel on his behalf without first receiving Mr. Kuffuor’s instructions to put him in contact with duty counsel. The trial judge then engaged in an analysis under s. 24(2) of the Charter as required in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, before concluding that the breach did not warrant the exclusion of evidence. She correctly identified the three factors highlighted under Grant, at paras. 71-86, considered each one separately, recounted the relevant evidence and circumstances, and weighed the various factors. Her conclusion that the Defence had not established that the admission of the breathalyzer evidence would bring the administration of justice into disrepute was reasonable based on the evidence and all the circumstances, was not based on any misunderstanding of legal principles, and was consistent with the thrust of the jurisprudence. This ground of appeal fails.

Unreasonableness of Verdict

[33] A verdict will be said to be unreasonable pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, if an appellant court is satisfied that the verdict is one that a properly instructed trier of fact, acting judicially, could not have rendered (R. v. Yebes, [1987] 2 S.C.R. 168, at pp. 185-186; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 20-25; and R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55).

[34] In considering this issue, the appellate court must re-examine and, to some extent, reweigh the evidence to determine whether the verdict of guilt, which had to be reached beyond a reasonable doubt, was available on the totality of the evidence. Even if the verdict was available, the appellate court must consider whether there was an absence of reasoning or an error in the reasoning process that led to the conviction. Great deference should be shown to findings of credibility made by the trial judge.

[35] Mr. Kuffuor argues that the verdict reached by the trial judge was unreasonable because the trial judge did not take into account information in the Crown’s disclosure package not tendered in evidence at trial; the trial judge found Officer De Souza Lima to be a credible witness and his evidence to be reliable; the trial judge did not find Mr. Kuffuor to be credible when he communicated on the night in question with the 911 operator and then Officer De Souza Lima; the Crown’s case was based entirely on circumstantial evidence; and the trial judge engaged in speculation in concluding that Mr. Kuffuor had been the driver of the vehicle involved in the accident. None of these issues raised by Mr. Kuffuor persuade me that the verdict reached by the trial judge was unreasonable.

[36] First, the trial judge cannot be faulted in not considering “evidence” that was not adduced at trial. On the contrary, in arriving at her decision, she was obliged to only consider the evidence tendered at trial.

[37] Second, it was the responsibility of the trial judge to assess the credibility of Officer De Souza Lima and the reliability of his evidence. In doing so, the trial judge reviewed the challenges to that evidence raised by trial Defence counsel when she was cross-examining the officer. The trial judge considered the officer’s responses to those challenges and the balance of the evidence tendered at trial. That further evidence included the 911 audiotape where Mr. Kuffuor was saying things to the operator that Officer De Souza Lima reported Mr. Kuffuor had said to him as well. The trial judge also had the benefit of videotapes from the cell block and from the breathalyzer room, both that displayed Mr. Kuffuor’s mood as being labile and his attitude to the police as often being aggressive and uncooperative – consistent with how Officer De Souza Lima described Mr. Kuffuor’s behaviour at the scene and in the patrol car. The trial judge found Officer De Souza Lima to be credible and his evidence reliable. Her conclusion is entitled to deference.

[38] Third, in deciding what weight to assign to the statement made by Mr. Kuffuor to the 911 operator, the trial judge had the benefit of the audiotape of that call and listened to it several times before concluding, as was her right, that Mr. Kuffuor’s version of events as recounted to the 911 operator and to Officer De Souza Lima was not credible and did not raise a reasonable doubt as to whether he had been driving the vehicle while impaired.

[39] Fourth, circumstantial evidence can be adequate to support a conviction, subject to this caveat: in order to convict, the trial judge must be satisfied beyond a reasonable doubt that the only reasonable or rational inference that can be drawn from the circumstantial evidence is that the accused is guilty (R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33; Villaroman, at paras. 30, 41). The inferences that may be drawn from circumstantial evidence must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (Villaroman, at para. 36). If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt (Villaroman, at para. 35).

[40] As explained by Cromwell, J. in Villaroman, at para. 37:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (Ont. C.A.), at pp. 205 and 211, per Middleton J.A., aff'd [1938] S.C.R. 396 (S.C.C.); R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11 (B.C. C.A.), at para. 20; R. v. Mitchell, [2008] QCA 394 (S.C.C.), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw (1971), [1972] S.C.R. 2 (S.C.C.), at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[41] Circumstantial evidence does not have to totally exclude other conceivable inferences or possibilities, it simply has to exclude all other reasonable alternative inferences (Villaroman, at para. 42). The burden on the Crown does not extend to disproving every possible conjecture; reasonable doubt is not to be based on speculation or conjecture (Villaroman, at para. 50).

[42] The standard of review on appeal from a conviction at a judge alone trial is whether the trial judge, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable or rational conclusion available on the totality of the evidence (Villaroman, at para. 55). In the case at hand, the question is not whether this court is of the view that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence; it is whether it was open to the trial judge, acting judicially and reasonably, to be satisfied beyond a reasonable doubt that the only available conclusion on the basis of all of the evidence was that Mr. Kuffuor, while impaired by alcohol, drove the vehicle in question (Villaroman, at paras. 69, 71).

[43] The trial judge set out the evidence that collectively led her to find Mr. Kuffuor guilty beyond a reasonable doubt. That evidence included the following:

• The toxicologist’s report was admitted by the Defence and established that at the time when the accident likely occurred as decided in reference to various 911 calls, Mr. Kuffuor would have had a blood alcohol level above the legal limit and in the toxicologist’s opinion would have been impaired.

• The accident in question was a single vehicle accident where the car left the road at a turn and ended up 150-200 metres away on the grassy median.

• The vehicle was severely damaged.

• When Officer De Souza Lima arrived on scene, the vehicle was unoccupied, there was no key in the ignition, and the hood was warm.

• Shortly after Officer De Souza Lima arrived at the scene of the accident, Mr. Kuffuor walked slowly towards him, stumbling as though he could not lift his feet up or walk in a straight line, even though the grass on the median was flat.

• Mr. Kuffuor smelled strongly of alcohol, he had glassy eyes, and his mood kept shifting.

• When questioned by Officer De Souza Lima as to why he was there, Mr. Kuffuor gave a confused response that made no sense to the officer. He said he was returning from the casino as a passenger in his car. Another man, whom Mr. Kuffuor could not name or describe, was driving the car. The two men got into an argument. The man punched Mr. Kuffuor in the head and then ran the car off the road.

• The front and back driver side airbags were deployed, but not the passenger airbags. There was an intact hat sitting on the front passenger seat. Although this evidence could not be taken as determinative of anything, at the same time, it offered no support to Mr. Kuffuor’s assertion that he had been a passenger in the vehicle in a seat where the unidentified driver could punch him in the head while driving.

• None of the officers who attended at the scene and who searched the area discovered another person in the vicinity who could have been the unidentified driver referred to by Mr. Kuffuor.

• Mr. Kuffuor was the registered owner of the vehicle.

• Following his arrest, when in the patrol car going to the station, while at the station, and when in the breathalyzer room, Mr. Kuffuor was difficult and uncooperative.

• On the 911 call made by Mr. Kuffuor, he can be heard telling the operator at more than one instance that he had been driving. He then corrected himself and said that he was the passenger. In the trial judge’s view: “this confusion is that of a person fabricating a story and unable to keep the story straight and getting confused between the truth and the lies” (Transcript, May 12, 2021, at p. 22).

[44] There was sufficient evidence on the basis of which the trial judge could reasonably be satisfied beyond a reasonable doubt that Mr. Kuffuor’s guilt was the only reasonable or rational conclusion available on the totality of the evidence.

Disposition

[45] For the above reasons, Mr. Kuffuor’s appeal is dismissed.

Aitken J.

Released: February 8, 2022

[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.