Court File and Parties

COURT FILE NO.: CR-20-8562-AP DATE: 2023/09/13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING Respondent – and – David Zomou Appellant

Counsel: Carl Lem, for the Crown Jeylan Davies, for the Appellant

HEARD: August 16, 2023

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

CARTER J.

Overview

[1] David Zomou was charged with impaired operation of a motor vehicle, refusal to provide a breath sample, failure to comply with a recognizance and resist arrest. The charges arose out of an incident that occurred on January 19, 2020. The trial took place before Crewe J. in the Ontario Court of Justice over a number of days in 2021.

[2] On the morning in question, an individual was rear-ended by another driver who, after a brief interaction, fled the scene. Some time after this incident, two O.P.P officers located a vehicle matching the one that had earlier fled the scene by a highway ramp. While the O.P.P officers dealt with the vehicle on the side of the road, multiple Ottawa police officers were dispatched to the scene as the O.P.P officers were not answering their radio.

[3] One of the OPS officers who arrived on scene, Cst. Nguyen, directed the Appellant to stand in front of the police cruiser. He then took the Appellant’s drivers licence and went to run it in his cruiser. Another officer, Cst. Capady, approached the Appellant and began questioning him. When the Appellant entered into an aggressive stance, Cst. Capaday arrested him for public intoxication. A search incident to arrest yielded the key fob to the vehicle. The police also received information that the Appellant matched the description of the person who had fled the scene. The Appellant was arrested for impaired operation. At the station, he refused to provide a breath sample.

[4] At trial, the Appellant brought a Charter application alleging that he had been arbitrarily detained by Cst. Nguyen, that Cst. Capaday did not have sufficient grounds to arrest him for public intoxication and that all evidence obtained as a result of these breaches should be excluded. The trial judge rejected the defence arguments and admitted the evidence. The Appellant also argued that certain statements he made to the police were not voluntary and therefore inadmissible. Again, the trial judge dismissed this argument. Finally, the Appellant brought an application for the trial judge to declare a mistrial on the basis of a reasonable apprehension of bias. This application too was denied.

[5] The Appellant was convicted of the refusal and impaired operation charges but acquitted of resisting arrest. The failure to comply with a recognizance charge with withdrawn by the Crown.

[6] It is the rulings on the four above noted applications that are the subject of this appeal.

[7] I will deal first with the allegation of reasonable apprehension of bias.

Issue #1: Did the Conduct of the Trial Judge Create a Reasonable Apprehension of Bias?

[8] The Appellant points to four instances that occurred during the course of the trial that he submits demonstrated that the trial judge did not decide the matter fairly:

a. The trial judge’s summary dismissal of defence counsel’s argument that witnesses should be unmasked while testifying;

b. The trial judge’s granting of the Crown’s application to permit a civilian witness to testify remotely;

c. The frustration exhibited by the trial judge towards defence counsel on the issue of the revision of a Charter application; and

d. The trial judge’s failure to rule on an objection made by defence counsel with respect to the admissibility of evidence on the voluntariness voir dire.

[9] A common thread that runs through the four complainants is that the trial judge, in essence, refused to listen to the submissions of defence counsel.

[10] The appearance of judicial impartiality is critical to the maintenance of public confidence in the criminal justice system. The test to be applied in determining whether a reasonable apprehension of bias exists is as follows: What would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude? Would they believe the judge is more likely than not, whether consciously or unconsciously, to decide the case unfairly? (Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] S.C.J. No. 79 at paras 57-59 & 74). There is a well-established and vital presumption that judges decide cases impartially. This presumption is difficult to displace, particularly on appeal (R. v. Ruthowsky, 2018 ONCA 552 at para. 21).

[11] While certain aspects of the trial judge’s conduct were problematic, I conclude that the Appellant has failed to rebut the strong presumption of judicial impartiality. An informed person, viewing the matter realistically and practically – and having thought the matter through – would not have concluded that the trial judge would have decided the trial issues, whether consciously or unconsciously, unfairly against the Appellant.

First Instance

[12] The first alleged instance of bias occurred on the first day of trial. Following a plea of not guilty, the Crown told the trial judge that defence counsel was taking the position that the witnesses should be unmasked when they testify. The trial judge immediately responded:

“That’s not going to happen. I can – you can make submissions if you want, but it’s not going to happen Mr. Johnston.”

[13] While this comment certainly suggests that the trial judge had prejudged the issue, it is important to understand the context. The trial was taking place in the middle of the pandemic. The issue of masking was a health concern.

[14] In any event, defence counsel clarified that his position was that the witnesses should wear face shields, as opposed to face masks. On that issue, the trial judge expressed his opinion that it was not his role to dictate to people the manner in which they masked. However, he went on to say:

So, unless you want to provide me with some very cogent reasons, including evidence, as to the efficacy of that device, and if we want to use up a good chunk of the day dealing with that before we get into the trial, we can, that’s your – it’s your – it’s your prerogative, Mr. Johnston. I won’t spend the time....

[15] At that point, defence counsel indicated that he could “read the writing on the wall” and did not pursue the matter further. The trial judge did not prevent counsel from making submissions. There is nothing in the trial judge’s approach to this procedural health issue that suggests he was biased against the Appellant.

Second Instance

[16] The second alleged instance of bias is said to be that the trial judged in favour of the Crown’s application to have a civilian witness testify remotely despite the fact that evidence in support of the application was “not overwhelming.” This was a discretionary decision. There is no suggestion that the trial judge erred in law. The mere fact that the trial judge ruled against the Appellant does not lead to a conclusion that there is a reasonable apprehension of bias. Having expressed an opinion that evidence would be required on the issue of using a face shield as opposed to a mask, the trial judge was not obliged to require “overwhelming evidence” on the separate and largely unrelated issue of whether a witness could testify remotely.

Third Instance

[17] The third alleged instance of bias arose as follows. On March 31, 2021, defence counsel advised the court orally that the application to exclude evidence pursuant to s. 24(2) of the Charter would perhaps be expanded to include the use of a “spit hood.” The matter did not complete that day, and new trial dates had to be procured. When the matter was back in court some months later, and defence counsel proposed to cross examine Constable Dacquay on an OPS document pertaining to spit hoods, the Crown objected as the Appellant’s Charter application had not been expanded upon in writing to include this issue. The following exchange occurred:

THE COURT: And so, we’re off the track here and whenever I put something to you, you’re telling me, well, they did this, and they did that. I don’t – I don’t – again, we’re off to a poor start. We haven’t even got in an hour into this day. The last day we were here, we started off on a – on a sour foot, and it seems that you’re bound and determined to do the same thing today, and I don’t understand why. If you want to bring this Charter application, provide notice. That’s all you have to do.

MR. JOHNSTON: Sir, are you really … THE COURT: Well, then do it.

MR. JOHNSTON: … are you really yelling in court right now? THE COURT: Pardon?

MR. JOHNSTON: Are you yelling? Like, what – like I’ve said I’ll do it.

THE COURT: I’ve raised my voice and you don’t appear to be listening to what I’m saying because you keep saying something else, so it seems to me that in order for you to understand what I’m saying, I have to say it a bit louder, maybe then you’ll hear it. I’ve said the same thing about four times now, and you’re not paying any attention to it.

MR. JOHNSTON: I’ve said, yes, I’ll file it. [18] Ultimately, the trial judge proposed a break for counsel to discuss the issue further:

Well, why don’t we do this, why don’t we take the morning recess? You can speak to the Crown. You can have some discussion about where you’re going, and maybe when we come back, rather than popping surprises on each other and on me, you can come at this with some level of agreement as to what it is you want to do with this witness and with this evidence, and maybe we can get started up again with some - some degree of decorum in this courtroom, and - and not cause me to have to raise my voice with you again, Mr. Johnston, because believe me, it is the last thing that I want to do. You can - you can really take that to the bank that it gives me no pleasure to raise my voice with you in court or with anybody else. It hurts my head. It’s not good for my blood pressure at my age, and I really appreciate you not putting me in that position again. Understood?

[19] After the break, defence counsel abandoned the spit hood ground for Charter relief.

[20] The Appellant submits that throughout this dialogue, the trial judge displayed a clear bias against the Appellant, as he continuously prevented counsel from completing submissions and failed to give fair consideration to the Appellant’s argument. A reasonable person in the circumstances would be concerned that future submissions would also be ignored.

[21] I begin my analysis by noting that there was no justification for the trial judge to raise his voice with counsel. This was not a situation where counsel was disrupting the proceedings, such that a raised voice might be required to bring the proceedings back under control. It appears to be a situation in which the trial judge simply became impatient and lost his cool.

[22] In R. v. Snow, [2004] O.J. No. 4309 (Ont. C.A.), Justice Doherty, writing for a unanimous Court, observed at para. 24 as follows:

A trial judge is certainly entitled to control the proceedings and to intervene when counsel fail to follow the rules or abide by rulings. A trial judge is not a mere observer who must sit by passively allowing counsel to conduct the proceedings in any manner they choose. It is well recognized that a trial judge is entitled to manage the trial and control the procedure to ensure that the trial is effective, efficient and fair to both sides. ... We agree with the submission of the Crown that when viewed in the context of the proceedings as a whole, the trial judge did not cross "the difficult line between unnecessary, discourteous or erroneous interventions, and interventions that destroy the appearance of unfairness".

[23] Although the trial judge’s tone was discourteous and unnecessary, I am the view that it did not destroy the appearance of unfairness. The trial judge did not prevent the Appellant from revising the Charter application. Nor did he express any view on the merits of the proposed revision. Ultimately, counsel chose not to proceed with spit hood aspect of the argument.

Fourth Instance

[24] The Appellant submits that the fourth instance of bias on part of the trial judge during a voir dire on the voluntariness of the Appellant’s statements to Cst. Bashford. In the course of argument, Crown counsel replayed the cell block video depicting the interactions between the Appellant and cell block staff while he was being processed. Defence counsel raised a concern that the recording contained inadmissible hearsay:

MR. JOHNSTON: Your Honour, this is perhaps a small point, and perhaps I’m wrong. But I – I just I’m not sure I agree with my friend’s statements that you can just consider what the special constables are saying in the same way as if they had come to Court and testified. Because it’s...

THE COURT: All right.

MR. JOHNSTON: ... necessarily an out-of-Court statement that would be – being tendered for the truth of its content, sir.

THE COURT: All right.

[25] Later in the proceedings, counsel for the Appellant began to repeat his concern about the Crown’s failure to call certain officers at which time the trial judge interrupted him. The following exchange then occurred:

THE COURT: Yeah, I – I have that, Mr. Johnston. You’re not going to help me by just repeating things. I have your submission on that. And I’m going to – I’m now being asked to – to write a Decision. And I have your submission, and saying it twice is not going to have any more impact on me than saying it once, I heard it the first time you said it, okay. That doesn’t assist me with what I’m doing now.

I’m going to go through this, and I’m going to get as much as possible as I can from what’s said in this video, okay. And if I can’t get that, then I’ll – I’ll see how that impacts upon the Decision. But I am going to do this, do you understand me?

I have your submission – like, I’m not – you – you may think I fell off a turnip truck, or something, Mr. Johnston. I can assure you, I didn’t. I went to law school, just like you did. I was a lawyer for 27 years, just like you do now. I’m now appointed as a Judge.

They thought enough of me that – so – so, I – I can get something when somebody says it to me the first time. I don’t need to have it repeated.

What I’m doing now is going through this to try and figure out what’s on this video. Do you understand me?

MR. JOHNSTON: Your Honour, do I owe you an apology, sir?

THE COURT: No, you don’t owe me an apology, Mr. Johnston, but....

MR. JOHNSTON: Well, every day I’ve appeared in front of you, sir, you’ve been quite upset with me. And if I owe you an apology, I want to offer that to you, sir. I’m not here trying to upset you.

THE COURT: I asked you – I asked you a simple question, Mr. Johnston.

MR. JOHNSTON: No, but I – sorry, I want to – quite apart from this, it’s not – you know, I don’t, personally, enjoy coming to Court and – and drawing the ire of the Judge, so, I want to make sure that if I can avoid that, I will.

But every – again, I’m trying to figure out if I’ve done something to – to draw your consternation. I apologize. I just wanted to – when I had raised my objection, you didn’t really say anything to it, sir. That’s all.

THE COURT: I – I heard your objection and I – I – I understand it. I asked you a simple question. The question I asked you had to do with being able to understand what is being said on the video. What impact that has on the reasons, ultimately, I don’t know yet. But I’m going to go through this exercise. So, the question I asked you was, simply, that – and if you want me to repeat it, I will.

MR. JOHNSTON: Sir, I – not to cut you off, but I recall your question. I prefer that my client doesn’t editorialize here. And it’s the Crown’s evidentiary burden to satisfy...

THE COURT: Fair enough.

MR. JOHNSTON: ..., respectfully, sir.

THE COURT: Okay, that’s – that’s all I was asking you, and so, why we had to go through that is – is beyond me. But in any event, okay, let’s start again.

[26] The Appellant submits that the demonstration of bias continued when the trial judge stated, with respect to the conduct of the voluntariness voir dire, that he would do things “my way … just like the other guy with my first name did.”

[27] Once again, the trial judge’s remarks were discourteous and unnecessary. They evidence a lack of patience with counsel. The real complaint here, however, is not so much that the trial judge was biased, but that he failed to listen and consider the submissions of counsel. As will be discussed in greater detail below, there is some merit to this complaint.

[28] Nevertheless, a failure to properly consider the submissions of counsel does not lead to a conclusion that a trial judge is biased or even that there is an appearance of impartiality. It is of note that the trial judge’s comments about doing things “my way” arose in the context of an exchange with Crown counsel and his frustration with the process she had proposed. The trial judge’s comments to both defence counsel and Crown counsel, while unfortunate, do not rise to the level required to displace the strong presumption of partiality.

Issue 2: Did the Trial Judge Err in Concluding the Appellant was not Detained?

[29] The Appellant submits that he was detained shortly after the Ottawa Police arrived on scene and that the trial judge erred in finding otherwise.

[30] The trial judge’s findings of facts on this issue are entitled to defence but the ultimate ruling is subject to review for correctness. That is because the issue of whether the facts as found by the trial judge amount at law to detention is a question of law (R. v. MacKenzie, 2013 SCC 50 at para. 54).

[31] Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider the following factors:

a. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

b. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication (R. v. Grant, 2009 SCC 32 at para. 44).

[32] The focus of the inquiry must not be on what was in the accused’s mind, but on how the police behaved and how such behaviour would be reasonably perceived. This avoids putting the onus on the claimant to gauge correctly when they are detained and when they are not (R. v. Le, 2019 SCC 34 at para. 115).

[33] The trial judge made the following key findings of fact which are entitled to deference on appeal:

a. Cst. Nguyen asked the Appellant to wait in front of his vehicle to keep him safe from oncoming traffic. The Appellant would not reasonably have viewed this request as a detention in the circumstances as he was simply being asked to stand in an area where he was less likely to be hit by a motor vehicle.

b. The Appellant had advised Cst. Nguyen that he was a passenger, not the driver of the vehicle. As a result, there was no objective reason for the Appellant to feel he was detained.

c. There was no physical restrain placed upon the Appellant.

d. The Appellant is a member of a racial minority. However, he was an adult who was not unsophisticated, challenged Cst. Capaday to a fight and was in full view of the public.

e. The Appellant’s ability to leave the scene was constrained by the weather and his location on a highway ramp.

[34] I agree with the trial judge that these findings all point to a conclusion that the Appellant was not psychologically detained.

[35] However, the one factor that the trial judge failed to consider was that Cst. Nguyen asked for and obtained the Appellant’s driver’s licence. In some cases, the asking for and taking of identification from an individual will be a factor that weighs in favour of a finding of detention (see R. v. Guenter, 2016 ONCA 572 at paras. 45 and 46). It may, for instance, suggest that the police have singled out an individual for focused attention. In this case, Cst. Nguyen testified that he did this pursuant to Ottawa police policy. In situations involving motor vehicle collisions, they identify everyone in the vehicle in case of injuries in the future for insurance purposes. This was more in the way of a general investigation than one focused on the Appellant. Under the circumstances, this factor does not support a finding that the Appellant was detained.

Issue 3: Did the Trial Judge Err in Finding that there were Sufficient Grounds for Arrest?

[36] At trial, the Appellant argued that the arrest of the Appellant for public intoxication was a ruse. The real reason for his arrest was so that he could be searched for evidence that would demonstrate he was the driver of the vehicle. The trial judge found that there was no such ruse and that finding is not challenged on appeal. Rather, the Appellant submits, as he did at trial, that the Appellant was not sufficiently intoxicated to provide an objective basis for his arrest and that the arresting officer failed to consider alternatives to an arrest.

[37] At the time of these events, s. 31 of the Liquor License Act (“LLA"), RSO 1990, c L.19 stated in part:

31(4) No person shall be in an intoxicated condition,

(a) in a place to which the general public is invited or permitted access

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

[38] There are three requirements for a lawful arrest under s. 34(5) of the LLA:

a. Reasonable grounds to believe the suspect was intoxicated in a public place;

b. Reasonable grounds to believe there is a risk to someone’s safety; and

c. Reasonable grounds to believe that arrest was “necessary”, in the sense that there were no other reasonable ways of preventing the risk to safety (R. v. Ing, 2012 ONSC 1339 at para. 24).

[39] Although these elements were argued by the Appellant at trial, the trial judge did not directly address them in his reasons for judgment. Nevertheless, he made a number of factual findings relevant to the issue. In particular, he accepted the evidence of Cst. Capady as to how the arrest unfolded. Cst. Capaday testified that when he first approached the Appellant, he noticed a strong odour of alcohol emanating from him and that, in his opinion, he was visibly intoxicated. He was shutting his eyes heavily, keeping them shut for “long periods.” His speech was slurred. When asked how the Appellant has sustained the injury to his lip, he suddenly changed and became really angry. He yelled something to the effect of “you wanted to piss me off, now I’m pissed, let’s go.” As the Appellant said this, he clenched his fists and took a posture, which in the officer’s experience he recognized as an imminent assault. The trial judge concluded that the Appellant’s arrest was not only justified but was necessary in the circumstances for the safety of all persons present, including the Appellant himself.

[40] Although the trial judge did not undertake the required legal analysis, he made the necessary findings of fact that allow me to do so now on appeal.

[41] The caselaw suggests that something more than mere impairment by alcohol is required to establish that a person is in an “intoxicated condition.” Some cases describe this as being “stupefied by alcohol”, while others refer to it as a state of “substantial or extreme impairment” (Radovici v. Toronto Police Services Board, 2007 CarswellOnt 4317 at para 18). While the evidence in this case may not have risen to the level of proof beyond a reasonable doubt, it is sufficient to provide objective grounds for an arrest. The Appellant was exhibiting classic signs of impairment by alcohol. They reached a level such that he appeared to have lost the capacity to prevent himself from threating to cause injury to Cst. Capady. There were sufficient grounds for Cst. Capady to believe there was a risk to his safety and that the arrest was necessary. When counsel for the Appellant was repeatedly asked by the trial judge during final submissions what other course of action the officer could have taken to get the situation under control, he suggested that Cst. Capady could have say “no thank you” and left. I find that suggestion to be unrealistic in the circumstances and that given the indicia of significant impairment coupled with the threat of potential violence the arrest was justified.

Issue 4: Did the Trial Judge Err in Finding the Appellant’s Utterances Voluntary?

[42] One of the pieces of evidence that the trial judge relied on to convict the Appellant of the impaired operation charge was an utterance he made to an officer at the police station. The Appellant told the officer that he had been drinking and that he intended to drink until he puked. That utterance had been the subject of a voir dire, at the conclusion of which the trial judge found the utterance to be voluntary.

[43] The Appellant takes issue with that conclusion and urges a different result on appeal. It is not the role of an appellate court to simply reconduct a voluntariness voir dire. However, I conclude that the trial judge erred in law and that this error requires intervention.

[44] As previously noted, counsel for the Appellant made a submission to the trial judge during the voluntariness voir dire that certain officers dealing with the Appellant at the police station had not been called to testify. One of the concerns raised was that certain comments made by the officers in the cell block video would constitute inadmissible hearsay evidence. When counsel attempted to raise the issue on a second occasion, he was cut off by the trial judge in a discourteous manner.

[45] As it turns out, the concerns of counsel for the Appellant were legitimate. In his reasons for decision on the voluntariness voir dire, the trial judge stated as follows:

Now with respect to the special constable, likewise, in my view, there is nothing in that video clip, the six-minute clip, that can be taken to be threatening. The officers appear to be simply doing their job. They only place the hood on Mr. Zomou because he wouldn’t stop talking and the officers were worried that they could get blood spit at them. The officer said to him, “Look, you won’t stop talking and you spit when you talk. You’ve got a cut lip and I’m not about to get blood on me. ” In my view, the officers are not required to put up with those kinds of hazards even pre-COVID, which this case was [emphasis added].

[46] The trial judge relied on the statements of the officers for the truth of their contents – that the Appellant was spitting when he talked to them.

[47] The Respondent does not dispute that the trial judge relied on inadmissible hearsay. Rather, the Crown argues that the inadmissible evidence had no impact on the ultimate decision with respect to voluntariness and that, in any event, there was more than enough evidence relied on by the trial judge in convicting the Appellant on the impaired operation charge without the utterances of the Appellant. The threshold for upholding a conviction despite legal error is a high one. Given that the spit hood issue was a key part of the defence position with respect to voluntariness and that the trial judge specifically relied on the Appellant’s utterances in convicting him of the impaired operation charge, I am not prepared to apply the curative proviso.

[48] I do, however, agree with the Crown that the Appellant’s utterances had no bearing on the conviction for refusal to provide a breath sample. The Crown need not prove the voluntariness of the utterances that constitute the refusal as they are an essential element of the offence. As a result, the appeal is allowed, and a new trial ordered, solely with respect to the conviction for impaired operation.

Carter J.

Released: September 13, 2023