Court File and Parties

Court File No.: 22-86-00AP Date: 2024/04/08 Superior Court of Justice - Ontario

Re: R. v. William Peters

Before: M.G. Ellies J.

Counsel: Mieszko Wlodarczyk, Counsel, for the Crown Ian Bingham, Counsel, for the Respondent

Heard: April 8, 2024

Endorsement

[1] Mr. Peters appeals his conviction on June 14, 2022, for having a blood alcohol level in excess of the legal limit within two hours of operating a conveyance.

[2] The charges were laid after a friend with whom Mr. Peters was celebrating called the police when Mr. Peter insisted on driving a vehicle. The appellant had exited the vehicle and was still on the property at the time he was apprehended by the officer. He later provided breath samples which showed that he had 170 and 150 milligrams of alcohol in 100 millilitres of blood. He was charged with both impaired operation and “over 80”. He was acquitted of first offence but convicted of the second.

[3] The appellant contends that the trial judge misapprehended the evidence as it relates to the reliability and the credibility of the evidence of the person who called the police. Following Mr. Bingham’s able argument, I dismissed the appeal for reasons to follow. These are my reasons.

[4] The Crown called two witnesses at the trial. One of them was a civilian, Shayla Nesbitt. She testified that, on September 13, 2020, the appellant had been invited to join some of her family and friends to celebrate her birthday at the home of her father, where she rented the basement. She said that she had seen the appellant consume a significant amount of alcohol and that his behaviour had become belligerent. She said that the appellant had been offered either a place to sleep or a taxi home. However, the appellant insisted on driving.

[5] She testified that the appellant got into a white pickup truck with Alberta licence plates and started driving towards the road. However, instead of leaving the property, the appellant drove the truck around the garage and parked the truck there. She said he later got out of the truck and joined others on the deck of the home, where he nearly got into an altercation before going back to his truck. She said that when the police arrived, the appellant bolted from the truck into the backyard.

[6] The other Crown witness was Constable Hailey Field. She testified that, as she pulled onto the property, she saw a parked white truck with Alberta plates on the property. She said she saw the taillights of the vehicle flash as though the vehicle was being locked and a man in a black leather coat running into the bush. She called for backup. Not quite an hour later, the appellant walked out of the bush and approached the police, who arrested him on the strength of the evidence of Ms. Nesbitt.

[7] The appellant submits that the trial judge failed to appreciate the significance of a number of contradictions and implausibilities in the evidence of Ms. Nesbitt, thereby rendering the verdict unreasonable. In his factum, he focuses on the evidence as it related to the truck. He highlights what he contends is a contradiction between the evidence of Ms. Nesbitt that the appellant was operating a flatbed truck and that of the officer, whom he says testified that the truck had a box.

[8] Whether the truck had a box or not was irrelevant because the evidence of Ms. Nesbitt was that she watched the appellant get into the vehicle, drive it around the property, and get out of it. Based on this evidence, and the fact that the appellant was well known to Ms. Nesbitt, the identity of the appellant as the operator of the vehicle was well established.

[9] In argument, Mr. Bingham highlighted what he submits are several more inconsistencies in Ms. Nesbitt’s evidence, including:

• Saying that the property on Cook’s Mill Road was hers, when she also said she was a tenant there.
• Including herself as someone living on the property, when she later failed to include herself in that group.
• Saying that the appellant was falling down drunk during the gathering, when she later said she saw him bolting from the truck.

[10] I do not see these all as inconsistencies. For example, it is not inconsistent for a tenant to refer to her place of residence as “her place” especially in a case like this where Ms. Nesbitt was renting from her father. To take another, it is not impossible that the appellant was able to run from the truck even though he might have been impaired, a finding that the trial judge refused to make.

[11] Mr. Bingham also submits that the trial judge failed to deal with the evidence of Ms. Nesbitt that she herself had consumed alcohol and smoked marijuana and the implausibility of her evidence that she and the others present called out to the appellant, telling him not to drive, when he was 300 feet away in his truck and it was pouring rain.

[12] With respect to the possibility that Ms. Nesbitt was impaired, Ms. Nesbitt testified that she had consumed only three drinks that day and there was no evidence of which I was made aware as to how much marijuana she smoked. There was no reason for the trial judge not to accept the evidence that Ms. Nesbitt gave in cross-examination that she was minimally impaired.

[13] As for telling the appellant not to drive, there was evidence that the people gathered together that day had told the appellant not to drive before he got into the truck. I do not see Ms. Nesbitt’s evidence that they told the appellant not to drive as referring specifically to telling him this when he was in his vehicle. Even if that is what she meant, she did not say that the appellant heard them. Indeed, she says that the appellant ignored them.

[14] Finally, Mr. Bingham argues that the trial judge failed to appreciate that there was animosity between Ms. Nesbitt and the appellant stemming from the appellant’s behaviour on the day in question. This animosity, if there was any, was understandable given the appellant’s behaviour that day. It was not of the sort to support an allegation that Ms. Nesbitt would falsely accuse the appellant of a crime.

[15] It was open to the trial judge, notwithstanding the evidence relied upon by the appellant, to accept the testimony of Ms. Nesbitt that the appellant appeared to be intoxicated and that she saw him driving a vehicle on her property. The failure of the trial judge to refer specifically to the areas of the evidence that the appellant now contends made Ms. Nesbitt’s evidence both unreliable and not credible is not fatal to the trial judge’s conclusion that the appellant operated the vehicle in question: R. v. Morrisey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at p. 527. Any misapprehension of the evidence must play a role in the trial judge’s reasoning process before the judgment will be set aside: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. That has not been demonstrated here.

[16] For these reasons, the appeal is dismissed.

M.G. Ellies J. Date: April 8, 2024