COURT FILE NO.: SCA(P) 1471-21 DATE: 2023 01 31

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

HIS MAJESTY THE KING S. Skoropada for the Respondent

– and –

RAJVINDER SINGH D. Lent for the Appellant

HEARD: December 16, 2022 in Brampton

REASONS FOR JUDGMENT

[On appeal from the Decision of Justice G. Krelove of the Ontario Court of Justice dated November 30, 2021]

F. DAWSON J.

[1] Rajvinder Singh appeals from his conviction for operating a conveyance while his ability to do so was impaired by alcohol contrary to s. 320.14(1)(a) of the Criminal Code. He was found not guilty at trial of the related offence of having a blood alcohol concentration of over 80 mg of alcohol in 100 ml of blood within two hours of operating a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.

[2] The charges resulted from the investigation of a minor traffic collision which occurred on the afternoon of February 1, 2019 in Brampton. The appellant was stopped at a red light waiting to make a right turn. For some reason he backed his vehicle up and struck a vehicle operated by Arshdeep Sekhon. After the drivers spoke, they pulled their vehicles into a Tim Horton’s parking lot. Mr. Sekhon asked a passenger in his vehicle to call the police because he believed the appellant was intoxicated.

[3] The investigating police officer testified that he quickly formed reasonable grounds to believe that the appellant’s ability to operate a conveyance was impaired by alcohol. The appellant was arrested, read his rights to counsel and administered a breath demand. Pursuant to that demand he subsequently provided two samples of his breath into an approved instrument at a police station. The lowest of the two resulting readings was 230 mg of alcohol in 100 ml of blood.

[4] The evidence and submissions at trial took five days to complete. The appellant sought to exclude the results of the breath tests on the basis that the appellant’s rights under ss. 8 and 10(b) of the Charter had been violated.

[5] The Charter application and the trial were conducted as a blended proceeding. By agreement, the appellant testified on the Charter application but not on the trial.

[6] At trial the appellant argued that the arresting officer, Cst. Grove, did not have reasonable grounds to make a breath demand, thereby violating s. 8 of the Charter. The appellant further contended that his s. 10(b) rights were violated because his rights to counsel were not provided to him in the Punjabi language.

[7] In terms of the impaired operation charge, the appellant contended at trial that inconsistencies and problems with the evidence of various witnesses should lead the trial judge to make adverse findings of credibility and reliability in relation to the evidence of the appellant’s impairment. That evidence flowed primarily from Mr. Sekhon and Cst. Grove. The same arguments are made again on appeal.

The Evidence at Trial

[8] Mr. Sekhon testified that as he was stopped at a red light, the appellant backed up and struck his vehicle. Mr. Sekhon got out of his vehicle and spoke to the appellant through the passenger window of the appellant’s vehicle. The men spoke to each other in Punjabi. The appellant declined to provide his insurance. When the light turned green both vehicles proceeded through the intersection and pulled into a Tim Horton’s parking lot. Mr. Sekhon testified the accused did not park in a designated spot. This was contradicted by testimony from Cst. Grove and Cst. Chapman.

[9] Mr. Sekhon testified that the appellant smelled of alcohol and slurred his words. He thought the appellant was drunk.

[10] For reasons which are not entirely clear, the police received a dispatch to investigate an assault. However, Cst. Grove testified he also had information from his dispatch that there had been an accident and alcohol was involved.

[11] Cst. Grove arrived at 1:39 p.m. He observed the appellant in the driver’s seat of a vehicle parked in a designated parking spot. Cst. Grove opened the door to the appellant’s vehicle. He noted a strong odour of alcohol and that the appellant had glossy eyes. When asked to exit the vehicle, the appellant fumbled around inside his vehicle. He then stumbled while getting out and fell back against his vehicle, getting salt stains on his clothes. Cst. Grove arrested the appellant at 1:44 p.m.

[12] Cst. Chapman arrived at 1:41 p.m. He saw Cst. Grove escorting the appellant to his cruiser. Cst. Chapman testified that he assisted in handcuffing the appellant. Cst. Grove thought he did that without Chapman’s assistance. Cst. Chapman said he smelled alcohol on the appellant. However, contrary to the evidence of Cst. Grove, he did not note that the appellant had motor coordination difficulties. Cst. Chapman described his observations of the appellant as “very basic”. Cst. Grove left the scene with the appellant at 1:52 p.m.

[13] Cst. Chapman left the scene at 2:09 p.m. and attended in the breath room to observe the breath test procedure. He said that in the breath room the appellant smelled of alcohol and had slurred speech. However, he did not see or note any other signs of impairment. He saw the appellant walk into and out of the breath room.

[14] Cst. Grove testified that the appellant was unsteady in the breath room and appeared to him to be intoxicated. He also said that he observed the accused moving deliberately and with a wide gait in the sallyport after arrival at the police station.

[15] Cst. Esposito was called as a defence witness. She testified that she arrived at the Tim Horton’s parking lot at 2:06 p.m. She saw Mr. Sekhon and his friends, and she took witness statements from them. She said by the time she arrived Cst. Grove and the appellant had left the scene. Her evidence contradicted Mr. Sekhon’s testimony that he saw the appellant being arrested after Cst. Esposito arrived and told him to wait in the Tim Horton’s.

[16] Mr. Sekhon also testified that he thought Cst. Esposito took photographs of the damaged vehicles. Cst. Esposito denied that she took any photographs. Photos of the damaged vehicles were produced at the trial but were ruled inadmissible as who took them was never established. The evidence indicated that several police officers were present in the parking lot.

The Trial Judge’s Reasons

[17] The trial judge reserved his decision and later read a judgment which occupies approximately 20 pages of transcript. His reasons were well organized and explained how and why he reached his conclusions on each of the issues raised at the trial. The appellant’s s. 8 argument was rejected based on evidence, which the trial judge accepted, that supported Cst. Grove’s reasonable grounds to arrest the appellant and make a breath demand. I observe that the evidence of impairment was canvassed by the trial judge in relation to the s.8 issue, although the question of impairment was also addressed separately towards the end of the judgment.

[18] The trial judge also explained that he accepted the appellant’s testimony and the other defence evidence, led on the Charter voir dire, that the appellant did not fully understand the English language. The police evidence was to the effect that the appellant’s English was good. Nonetheless, the trial judge found that special circumstances existed which required the police to provide the appellant with his rights to counsel in the Punjabi language or to take other steps to ensure he understood his rights. As that had not been done, the trial judge found that s. 10(b) of the Charter had been violated. After conducting a s. 24(2) analysis the trial judge excluded the breath test results and acquitted the appellant on the excess alcohol charge.

[19] Although the Charter issues form no part of the appeal, I have referred to them because the evidence of impairment was often dealt with by counsel and the trial judge in the context of the s. 8 Charter issue. How the trial judge resolved the s. 10(b) issue reflects the thoroughness of his assessment of the various witnesses. As I will get to, the appellant’s submissions on appeal all attack the trial judge’s credibility assessments and factual findings in relation to his conclusion that the appellant’s ability to operate a conveyance was impaired.

[20] After excluding the breath test results and finding the appellant not guilty of the excess alcohol charge, the trial judge turned his attention to the impaired charge. His Honour set out seven findings of fact which led him to conclude that the appellant’s ability to operate a conveyance was impaired. The seven factual findings may be summarized as follows:

1. Upon arrival Cst. Grove noted an odour of alcohol from the appellant;
2. Shortly after the collision, Mr. Sekhon smelled alcohol coming from the appellant and noted that the appellant was slurring his words. Mr. Sekhon believed the appellant was drunk. I would add that Mr. Sekhon and the appellant spoke to each other in Punjabi;
3. Cst. Chapman also noted an odour of alcohol coming from the appellant;
4. When Cst. Grove opened the appellant’s door, the appellant turned slowly towards him;
5. Cst. Grove then noted that the appellant’s eyes were glossy and that the smell of alcohol coming from the appellant’s breath was strong;
6. The appellant fumbled about in the process of exiting his vehicle. Then he stumbled and fell against his car, getting salt stains on his clothing. The fact salt stains were not seen in the sallyport, breath room and booking videos could be explained by the stains rubbing off in the police car;
7. Cst. Grove noted the appellant was unsteady on his feet while walking to the cruiser.

The Appellant’s Submissions on Appeal

[21] The only ground of appeal which was pursued, as stated in the notice of appeal, is that the trial judge “erred in finding that the evidence adduced at trial proved beyond a reasonable doubt that the Appellant committed the offence of impaired driving…” The appellant’s factum follows the same generalized approach. Under the heading “Issues and the Law”, counsel for the appellant includes only three long paragraphs referring to the evidence which counsel submits ought to have led the trial judge to make different credibility findings and come to a different conclusion on the question of impairment. No cases are cited.

[22] I agree with the comment made in the respondent’s factum that the appellant’s written material amounts to a request that the court retry the case. I also agree with the respondent’s submission that it is entirely unclear from the appellant’s written material which of the three bases this court could rely upon to allow the appeal pursuant to s. 686(1)(a) of the Criminal Code the appellant is relying upon.

[23] At the hearing of the appeal the appellant recast his submissions in terms that the trial judge’s verdict was unreasonable and unsupported by the evidence. I will deal with the appeal accordingly. As counsel also submits that the trial judge failed to take certain evidence into account, I will also consider whether there was a misapprehension of evidence on that basis.

The Applicable Legal Principles

[24] The test to be applied to determine whether a verdict is unreasonable is whether the verdict is one that a properly instructed jury acting reasonably could have rendered on the evidence. In applying this test, a court must go beyond asking whether there is evidence to support the verdict. While the appellate court does not substitute its view for that of the original fact finder, the court must re-examine and to some degree consider the effect of the evidence: R. v. Yebes, [1987] 1 S.C.R. 168, 36 C.C.C. (3d) 417; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. However, the question is whether the verdict is reasonable, not whether it is justified: R. v. Corbett, [1975] 2 S.C.R. 275, at p. 282; R. v. Chacon-Perez, 2022 ONCA 3, at para. 73.

[25] The Supreme Court of Canada recently concisely summarized the law in respect of unreasonable verdicts in R. v. Brunelle, 2022 SCC 5, [2022] S.C.J. No. 5. I have extracted the relevant portions from para. 7-10:

7. When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3).

8. While the unreasonableness of a verdict is a question of law, the assessment of credibility is a question of fact (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10). A trial judge’s assessment of the credibility of witnesses may be rejected only where it “cannot be supported on any reasonable view of the evidence” (R. v. Burke, [1996] 1 S.C.R. 474, at para. 7).

9. We are all of the view that the majority of the Court of Appeal failed to consider the trial judge’s privileged position in assessing the evidence (see Beaudry, at para. 62). The majority faulted the trial judge for failing to consider certain evidence, but it did so without clearly identifying a palpable and overriding error in her analysis. However, “[t]he mere fact that the trial judge did not discuss a certain point or certain evidence in depth is not sufficient grounds for appellate interference” (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72). The majority could not simply substitute its opinion for that of the trial judge with respect to the assessment of the credibility of witnesses (R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 23). In the absence of a reviewable error, it should have shown deference.

10. … A verdict may be considered unreasonable where it is based on illogical or irrational reasoning, such as where the trial judge makes a finding that is essential to the verdict but incompatible with evidence that is uncontradicted and not rejected by the judge (Beaudry, at para. 98; Sinclair, at para. 21). Here, the inference drawn by the trial judge from the evidence was not incompatible with the evidence adduced. On the contrary, her approach was coherent and supported by evidence that was neither contradicted nor rejected. There were no grounds for intervention.

Analysis

[26] In my view the appeal must be dismissed. The trial judge’s reasons are entirely reasonable, and they are in all respects well supported by the evidence. The appellant has failed to establish that the trial judge made any palpable or overriding errors in relation to either his findings of credibility or in his other findings of fact supporting his conclusion that the appellant was impaired. In terms of any failure to mention evidence, the appellant has not shown, as he is required to do, that the trial judge made a palpable or overriding error by failing to take such evidence into account.

[27] I am further of the view that the evidence which the appellant contends the trial judge overlooked is not evidence which, considered on its own or in conjunction with the other evidence, is inconsistent with a reasonable finding that the appellant was impaired at the time of driving. I will elaborate on these points to the degree necessary to explain why I have reached my conclusion.

[28] The trial judge’s finding that the appellant was impaired rests substantially on his acceptance of parts of the evidence of Cst. Grove and Mr. Sekhon. The appellant submits that the trial judge’s credibility findings in this regard are flawed. However, rather than demonstrating that the trial judge made a palpable and overriding error in the process of making those findings, the appellant repeats the same arguments he made at trial.

[29] For example, the appellant submits that the trial judge should not have relied on the evidence of Cst. Grove because of inconsistencies between his evidence and Cst. Chapman’s evidence. Cst. Chapman said he helped to arrest the appellant. Cst. Grove said he did that on his own. Cst. Chapman did not observe the appellant to be unsteady at the time of arrest, while Cst. Grove said the appellant was unsteady.

[30] The trial judge was aware of these inconsistencies. He referred to them at pp. 12-13 and at p. 23 of the transcript of his reasons. At pp. 12-13 he said he had some concerns about the reliability of Cst. Grove’s evidence due to the contradictions, and he acknowledged that he should keep that in mind when considering all aspects of Cst. Grove’s evidence. At p. 23 of his reasons the trial judge explained that he preferred Cst. Grove’s evidence to that of Cst. Chapman regarding indicia of impairment at the time of arrest because Cst. Grove was the investigating officer and was carefully watching for signs of impairment. As the authorities clearly indicate, these findings of credibility are subject to deference in the absence of a palpable and overriding error, which has not been shown.

[31] The appellant further submits that the trial judge erred because he did not explain why video of the appellant’s movements in the sallyport, booking area and breath room did not undermine the conclusion that the appellant’s ability to operate a conveyance was impaired by alcohol. The appellant submits I should look at the video and conclude it shows that the appellant was not impaired, and then find that the trial judge erred because he failed to explain why he did not reach such a conclusion.

[32] The trial judge was aware of the video. He made specific reference to all three video recordings at p. 9 of his reasons. The recordings were an exhibit. The fact that the trial judge did not discuss them in the manner the appellant submits he should have, does not mean he did not consider them, nor does it constitute an error: Brunelle, at para. 8, citing Housen v. Nikolaisen, 2002 SCC 33. In Housen, at paras. 39 and 72, the Supreme Court of Canada held that failure to consider a relevant factor “is not itself a sufficient basis for an appellate court to reconsider the evidence.” The appellant must show that there is reason to believe that the trial judge must have forgotten, ignored or misconceived the evidence, in a manner which affected the judge’s conclusion. The appellant has not met that test.

[33] First, the issue is impairment at the time of driving. There is evidence of observations made much closer to the time of driving which showed impairment. The trial judge accepted and relied on that evidence.

[34] Second, having viewed the videos, in my view they are at best ambiguous on the issue of impairment. In terms of the sallyport video, the appellant is only seen standing or moving about outside the police car for a small portion of the video. While the video does not show that the appellant was grossly impaired at that time, the video is reasonably capable of being found to be consistent with Cst. Grove’s evidence that the appellant was walking with a wide gait and exhibiting some unsteady movements. In terms of the booking area video, I would make similar comments. In terms of the breath room video, there is only a very short time when the appellant is seen walking or standing. Most of the time he is sitting. The breath room video, in my view, is not inconsistent with a reasonable conclusion of impairment at the time of driving. Nor, in my view, is it irreconcilable with the testimony of Cst. Grove regarding how the appellant appeared to him in the breath room. The accused’s mannerisms and speech on the breath room video are at least consistent with impairment. I also note that the trial judge did not rely on any testimony about the appellant’s speech or coordination when the appellant was in any of the locations recorded on video to find impairment.

[35] In all these circumstances, the appellant has not demonstrated that failure to address the videos in more detail constitutes an error. I further observe that, even assuming the trial judge overlooked the videos, it is difficult to conceive how that would render the verdict unreasonable. The evidence in question was not evidence of a lack of impairment at the time of driving. It also is not evidence which undermined the credibility or reliability of the evidence the trial judge relied upon to find impairment at the relevant time. In any event, the trial judge was aware of the evidence, having adverted to it in his reasons.

[36] The appellant also attacks the trial judge’s findings of credibility regarding Mr. Sekhon. He proceeds in the same fashion, by repeating the same arguments advanced at trial. Again, no palpable or overriding error has been demonstrated in the process or reasoning by which the trial judge made his credibility finding. The appellant submits, by reference to various aspects of the evidence, that Mr. Sekhon was not a reliable witness. In particular, the appellant submits the trial judge ought to have found Mr. Sekhon’s evidence of impairment to be unreliable because of inconsistency between Mr. Sekhon’s testimony and that of Cst. Esposito.

[37] Mr. Sekhon, to be sure, gave evidence which was confusing and convoluted on some points. However, he was never significantly inconsistent on the aspects of his evidence which the trial judge relied upon, in conjunction with other evidence, to find that the appellant was impaired.

[38] Mr. Sekhon did testify that a female officer, whom he thought was Cst. Esposito, told him to go and wait at Tim Horton’s until she could come and take his statement. He testified that it was after that point when he observed the appellant being arrested in the parking lot. Mr. Sekhon further testified that he saw a police officer, whom he believed to be Cst. Esposito, taking photographs of the damaged vehicle.

[39] Cst. Esposito was called as a defence witness. She said that by the time she arrived on the scene Cst. Grove had already left with the appellant. She also denied she took any photographs of the vehicles.

[40] The appellant is correct that the trial judge does not discuss this conflict in the evidence specifically when assessing Mr. Sekhon’s testimony. However, it is clear from the trial judge’s reasons that he was aware of the discrepancy. In his summary of the evidence the trial judge set out the arrival times of officers Grove, Chapman and Esposito. He also set out the time Cst. Grove departed the scene with the appellant. This summary clearly shows that Cst. Esposito did not arrive until after Cst. Grove and the appellant were gone.

[41] I reach the same conclusion I did in relation to failure to discuss the various videos. The appellant has not demonstrated that the trial judge’s failure to discuss this in his reasons renders the finding that the appellant was impaired unreasonable. The appellant uses that as a stepping stone in an argument that the trial judge should have found Mr. Sekhon to be unreliable. However, the trial judge, who was clearly aware of this and other discrepancies, made a finding that Mr. Sekhon was “endeavouring to be honest and accurate in his evidence.” The trial judge also specifically found that Mr. Sekhon was credible. This is a finding that was open to the trial judge on the evidence.

[42] Clearly the trial judge was cognizant that there were some issues related to the reliability of Mr. Sekhon’s evidence. Nonetheless, having regard to the other evidence as well, the trial judge accepted what Mr. Sekhon testified to concerning the appellant’s impairment in the immediate aftermath of the collision. A trial judge is entitled to accept some, none or all of a witness’s evidence.

[43] I also observe that the discrepancy between the evidence of Mr. Sekhon and Cst. Esposito is quite collateral. It did not relate to any issue of bias or motive on the part of Mr. Sekhon to give untruthful or inaccurate evidence. It did not relate to the issue of the appellant’s impairment. Mr. Sekhon said throughout his evidence that his memory was adversely affected by the passage of time. I am far from persuaded that failure to discuss this collateral discrepancy in the evidence demonstrates a misapprehension of evidence capable of rendering the verdict unreasonable.

[44] The appeal is dismissed.

Justice F. Dawson Released: January 31, 2023

COURT FILE NO.: CR-21-1471-00AP DATE: 2023 01 31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING – and – RAJVINDER SINGH REASONS FOR JUDGMENT RE: SUMMARY CONVICTION APPEAL F. Dawson J. Released: January 31, 2023