Court File and Parties

COURT FILE NO.: SCA(P) 465/22 DATE: 2024 07 10

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING P. Quilty, for the Respondent Respondent

- and -

CHERRY MAGDALLAH P. Lindsay, for the Appellant Appellant

HEARD: January 26, 2024, in Brampton

REASONS FOR JUDGMENT

[On appeal from the Decision of Justice T. Kranjc of the Ontario Court of Justice dated August 9, 2022]

F. DAWSON J.

[1] The appellant was convicted of operating a motor vehicle while her ability was impaired by a drug. That drug was lorazepam, an anti-anxiety medication available by prescription.

[2] The trial proceeded based on an agreed statement of facts which constituted the entirety of the Crown’s case. The appellant testified as the only defence witness. Her testimony that she took lorazepam before driving by mistake, because she confused it with an anti-nausea medication, was rejected by the trial judge.

[3] The appellant submits that the trial judge made three errors in reaching her conclusion that the complainant’s evidence lacked credibility. I will deal with each in turn below to explain why I would dismiss the appeal.

The Evidence at Trial

[4] The agreed statement of facts established the following. On October 13, 2018 at 9:19 a.m. a radio broadcast was made to the Ontario Provincial Police (OPP) that a black Toyota Highlander had been observed travelling east on the Queen Elizabeth Way (QEW) near Ford Drive with its four-way flashers on. The Highlander was reported to be drifting within its own lane and almost striking other vehicles. An OPP officer spotted the vehicle on the QEW near Hurontario Street in Mississauga.

[5] The appellant was the driver and sole occupant of the Toyota Highlander. The officer drove behind the appellant’s vehicle with his emergency lights and siren activated but the appellant did not seem to notice. The officer then pulled up on the right side of the appellant’s vehicle with his emergency equipment activated. He observed the appellant staring straight ahead with a blank expression on her face. The officer then pulled his police vehicle in front of the appellant’s vehicle and gradually slowed down until the appellant stopped behind his vehicle in the left lane of traffic on the Gardiner Expressway just east of Highway 427.

[6] When the officer spoke to the appellant she had a blank stare on her face and appeared drowsy. Her speech was slurred and she was slow to respond to questions. The appellant stumbled on two occasions after she got out of her vehicle. The appellant was unsteady on her feet after she was taken to a police detachment and did poorly on a standard field sobriety test. A drug recognition expert subsequently concluded that the appellant’s ability to operate a motor vehicle was impaired by drugs. A urine sample analysed later identified lorazepam as the only drug in the appellant’s urine.

[7] The appellant testified that she was a pharmacist licensed to practise in Ontario since 2015. Prior to that she worked as a pharmacist in Egypt. She had a full-time position as a pharmacist in Cambridge, Ontario but also worked additional shifts as a relief pharmacist in various drugstores in the Greater Toronto Area. Prior to her arrest on October 13, 2018, she had worked 10 days straight.

[8] The appellant testified that on the evening of October 12, 2018 she became ill while working a shift until 10:00 p.m. at a pharmacy in Burlington. She was experiencing diarrhea, nausea and vomiting. When she arrived home in Milton she took loperamide for her diarrhea. Although she was very tired, she did not fall asleep until around 5:00 a.m. She said she woke up around 8:15 a.m. and had to get to work at a pharmacy in Etobicoke, where she was scheduled to work a relief shift starting at 9:00 a.m.

[9] The appellant testified that when she woke up she took medication from pill bottles which were in a ziplock plastic bag on her nightstand. She meant to take loperamide again for her diarrhea and an anti-nausea drug which had been prescribed for her, domperidone, for vomiting. The appellant testified that there were six medications in the ziplock bag, including a vial of lorazepam, which she only took to reduce her anxiety when flying.

[10] The appellant testified that on the morning of October 13, 2018 she must have accidentally taken lorazepam instead of domperidone. She said that she did not knowingly take lorazepam that morning. She testified that lorazepam and domperidone are both small white pills. The appellant said that following her arrest she suspected that she had made such a mistake. She said that was confirmed for her when she later received the results of the analysis of her urine sample.

[11] It was common ground that if the trial judge had a reasonable doubt about whether the appellant had taken lorazepam by accident the appellant was entitled to an acquittal on the basis that the appellant lacked the mens rea required for the offence of impaired driving as described in cases such as: R. v. King, [1962] S.C.J. No. 60, at p. 11; R. v. Aranovsky, 2021 ONCJ 84, at para. 18; R. v. Mavin, [1997] N.J. No. 206 (N.S.C.A.), at paras. 30-39; and R. v. Johnston, 2021 ONSC 4410, at paras. 13-15. The trial judge cited these authorities.

The Trial Judge’s Reasons

[12] The trial judge’s reasons were delivered orally and occupy 21 pages of transcript. At p. 4 of her reasons the trial judge noted that it was agreed between the parties that the case “stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial.” The trial judge devoted approximately 14 pages of her reasons to summarizing and analysing the appellant’s evidence in the context of the evidence as a whole. Her Honour concluded that the appellant’s evidence was not credible and that it did not raise a reasonable doubt.

[13] In summary, the trial judge made the following findings:

1. The appellant’s testimony about why she had failed to report the charge against her to the Ontario College of Pharmacy rang true. The appellant was cross-examined at length on that topic by Crown counsel.
2. Despite that finding, the trial judge noted that the appellant had at times been evasive and non-responsive to questions in cross-examination.
3. The trial judge found the appellant’s evidence about how she mistakenly took lorazepam, thinking she was taking domperidone, to be incredible and unbelievable for several reasons which she specified: (i) the appellant was an experienced pharmacist; (ii) the appellant gave evidence of the steps she takes in her work to avoid medication errors; (iii) the lorazepam and domperidone were kept in very different bottles, as could be seen in photos of the medications filed collectively as Exhibit 1 at trial; (iv) the two white round tablets which the appellant testified she confused are in fact very different in appearance. The trial judge described the differences in detail.
4. At the time of the incident the appellant was under “immense pressure” related to the illness of her husband and his inability to drive, as well as childcare pressures and family pressures, and due to working long hours.
5. The maximum effect of lorazepam is felt within one half hour of taking it. The appellant is familiar with the effects of lorazepam. She testified she took it at 8:15 a.m. She was reported to the police as a possible impaired driver at approximately 9:19 a.m. after she left her home in Milton.
6. The fact that the appellant did not notice the emergency lights and siren of the police vehicle driving behind her, beside her and in front of her for a considerable distance made her evidence that she felt only nauseous when driving implausible and unbelievable.
7. The appellant’s testimony about her limited recall of everything that happened during the traffic stop and over approximately three hours at the police detachment was internally inconsistent with her testimony that all she felt while driving was nausea.
8. The appellant was obviously impaired as indicated in the agreed facts.

[14] The trial judge made it clear that she was convicting the appellant on the basis that she was satisfied beyond a reasonable doubt that the appellant had knowingly taken lorazepam. The trial judge specifically rejected the Crown’s alternative argument that the appellant could be convicted on the basis that, even if she took the lorazepam by mistake, she became aware of her impairment after she began driving but continued to drive. The trial judge found that conclusion could not be reached without expert or other evidence to support it.

The Grounds of Appeal

[15] The appellant submits that the trial judge committed three errors in reaching her conclusion. First, the appellant submits the trial judge erred by “entering the arena” to become an advocate by relying on her own questioning of the appellant as a basis to reject the appellant’s testimony. Second, the appellant submits that the trial judge misapprehended the evidence by failing to consider or give effect to the appellant’s evidence that she mistakenly took the wrong medication because she was sick, sleep deprived and rushing to work at the time she took the medication.

[16] Third, the appellant submits the trial judge erred by rejecting the appellant’s evidence that she mistakenly took the wrong medication because it was “largely unchallenged” in cross-examination.

[17] I make the following preliminary observation. This appeal relates only to the trial judge’s assessment of credibility. In R. v. Myles, 2023 ONCA 90, at para. 2, Trotter J.A. made the following comments when considering such a case:

…The case turned on the trial judge’s assessment of credibility and reliability, which are factual findings. The law is clear that such findings should only be displaced on appeal where they “cannot be supported on any reasonable view of the evidence”: R. v. R.P., 2012 SCC 22, 344 D.L.R. (4th) 408, at para. 10; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82.

Appellate deference is afforded due to “the advantageous position of the trial judge who actually saw and heard the witnesses”: R. v. C.R., 2010 ONCA 176, at para. 31.

These principles apply in the present appeal. See also Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235, at paras. 10, 14, 18, 24.

Analysis

Did the trial judge err by entering the arena to become an advocate and by relying on her own questioning as a basis for rejecting the applicant’s testimony?

[18] The resolution of this question requires a further consideration of how the evidence unfolded at the trial.

[19] Most of the cross-examination of the appellant at trial was directed to the appellant’s failure to report the outstanding criminal charge against her to the College of Pharmacists, as she was required to do by the regulations governing her profession.

[20] A relatively brief portion of the cross-examination of the appellant at trial was directed to the mistake she alleged she made when taking her medication on the morning of the alleged offence. Crown counsel at trial (not Mr. Quilty) suggested the label on the domperidone bottle was very small. In response, the appellant said she did not usually look at the vials or the labels because she knew what the tablets looked like. She said she was not sure what happened because she made a mistake which she did not recognize at the time. She reiterated that she was sick, very tired and in a rush to get to work.

[21] Against this background the appellant focuses on the fact that the trial judge asked the appellant 14 questions after re-examination of the appellant was completed. The questions related to the various photographs in Exhibit 1 which showed the medication bottles and the medications that were in the ziplock bag on the appellant’s nightstand. The trial judge also asked about how the appellant was feeling as she was driving on the morning of the alleged offence.

[22] The trial judge referred the appellant to the various photos in Exhibit 1 and sought confirmation of her understanding of which of the bottles in the bag contained the domperidone. Her Honour then asked about the location of the label on the domperidone bottle, which is not visible in the first photograph. The trial judge sought clarification about why the label could be clearly seen in photo 2 but not on photo 1. The trial judge also asked about when the photos were taken. Her Honour next confirmed that the appellant had taken the photo found at page 3 of Exhibit 1, which showed the loperamide, and the photo at page 5, which showed the lorazepam.

[23] The trial judge also asked the appellant if there was an “N” or a “Z” inscribed on each lorazepam pill as shown on the photographs. The trial judge also sought confirmation of her own observation that there appeared to be no marking on the domperidone tablets based on what could be seen in the photographs. The appellant responded that she thought those tablets were scored with a line going across them, but she could not remember how those tablets looked.

[24] The trial judge then referred the appellant to answers the appellant had given in cross-examination about how she was feeling and what sensations she was experiencing when she was driving, noting that the appellant said she had ongoing sensations of vomiting and diarrhea. Specifically, the trial judge asked the appellant if these were the only sensations the appellant had when she was driving. The appellant responded only that she felt nauseous.

[25] The appellant submits that considered cumulatively this questioning shows that the trial judge stepped outside of her proper adjudicative role and entered the arena. Counsel submits that the trial judge’s questions were inappropriate because they went beyond anything which was raised in cross-examination by Crown counsel and because the questions elicited new evidence which was later used by the trial judge to reject the complainant’s testimony. In this regard the appellant refers to the trial judge’s finding, at pp. 16-17 of her reasons, that the two white round tablets the appellant testified she could not distinguish between on October 13, 2018 “are in fact very different”. This was the fourth reason given by the trial judge for her conclusion that the appellant’s testimony was unbelievable. The trial judge also relied on the “N” or “Z” which appeared on each lorazepam tablet and on her finding, based on a review of the photographs in Exhibit 1 and her questioning of the appellant, that there were no markings on the domperidone tablets.

[26] The appellant additionally submits that the trial judge stepped outside of her role as a neutral adjudicator and became an investigator when she used her computer to zoom in on (enlarge) the photographs in Exhibit 1, which were filed at trial in electronic form. The trial judge explained in her reasons that she had done so to better view the pill bottles, the labels on the bottles and the pills themselves. The appellant points to the trial judge’s reliance on the differences in the shapes of the bottles in which the lorazepam and domperidone were kept, as one of her reasons for rejecting the appellant’s evidence. The appellant submits that this represented the introduction of a new matter, not raised by the Crown and never put to the appellant, which arose from the trial judge’s own investigation related to her electronic manipulation of the photographs.

[27] In summary on this ground of appeal, the appellant submits that what occurred amounts to a distortion of the adversarial process because the trial judge took on the role of an investigator and raised new issues which were used to reject the appellant’s evidence. Ultimately, the submission is that the trial was rendered unfair.

[28] I am unable to accept the appellant’s submissions in relation to this ground of appeal. First, in the circumstances I do not accept that the trial judge’s questions of the appellant exceeded what the law considers to be permissible and appropriate. Second, the trial judge did not engage in any form of independent investigation. What she did was examine the evidence in the form in which the parties had placed it before her.

[29] In terms of the boundaries of the appropriateness of questions asked of witnesses by a trial judge, the law in Ontario was thoroughly reviewed by the Court of Appeal in R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 63-72. Relying heavily on the judgement of Martin J.A. in R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), the court reiterated the following principles:

1. A trial judge may intervene to ask questions where necessary and has a duty to ask questions where justice requires it (para. 63).
2. Questions by a trial judge are justifiable to: (i) clear up ambiguities and call a witness to order; (ii) to explore a matter which the witness has left vague; (iii) to put questions which should have been asked by counsel about a relevant matter (para. 64).
3. The trial judge must not leave their position of neutrality as a fact finder and become the cross-examiner (para. 65).
4. The appearance of fairness must be maintained or a new trial will be ordered (para. 66).
5. The test concerning whether the appearance of fairness has been compromised is an objective one based on whether a reasonable observer would consider that the accused had not had a fair trial (para. 68).
6. The appearance of fairness and the trial judge’s duty to exercise restraint is particularly important where the accused testifies in a criminal trial. The trial judge must be careful not to usurp the role of counsel in order to avoid creating an overall impression fatal to the appearance of fairness (para. 69).
7. In assessing whether the appearance of fairness has been compromised the particular facts and circumstance of the case must be taken into account (para. 70).
8. Interventions by a trial judge of various types can compromise the fairness of a trial. As no trial is perfect, interventions complained of must be evaluated cumulatively, not as isolated occurrences, and from the perspective of a reasonable observer present throughout the trial (para. 72).

[30] Applying these principles, as they are more comprehensively stated in Stucky, I make the following observations.

[31] First, this is not a case where the trial judge interrupted the examination or cross-examination of the witness. The transcript reflects that the trial judge listened patiently as counsel on both sides examined the witness. This included during the extensive cross-examination of the appellant by Crown counsel at trial about why she had not reported to the College of Pharmacists that she had been charged with the offence in question. The trial judge waited until re-examination was concluded before posing her questions. By taking this approach the trial judge followed a recognized best practice in terms of the timing of her questions. She did not take over the role of counsel.

[32] Second, while there were leading aspects to a few of the trial judge’s questions, the record shows that the trial judge was not challenging the appellant. The trial judge was leading in some of her questions to draw the appellant’s attention to those aspects of the evidence about which the trial judge had questions. The questions related to matters relevant to the likelihood that the appellant had made the mistake she claimed to have made. Directing the appellant to relevant aspects of the evidence which were on the trial judge’s mind also gave the appellant an opportunity to address those aspects of the evidence which had not been fully covered by counsel. All of this falls well within the bounds of appropriate questioning by a trial judge based on Stucky.

[33] The trial judge’s questions about the markings on the pills provides an example of this last point. The photographs which revealed the differences between the pills were introduced into evidence by the appellant. The trial judge was required to carefully consider all that they showed. She made relevant observations, drew those observations to the attention of the appellant, and thereby permitted the appellant to address a relevant matter which was of understandable interest to the court. The trial judge heard the appellant’s response, without any criticism or apparent lack of credulity, and moved on.

[34] It seems to me that rather than exhibiting unfairness the trial judge was giving the appellant an opportunity, beyond that provided by counsel, to address relevant matters which were of concern to the trial judge. In a case where the defence was that the appellant mistakenly took lorazepam thinking it was domperidone, anything founded in the evidence which made it more or less likely that a mistake was made had to be considered and evaluated by the trial judge. As the finder of fact the trial judge was at least entitled to ensure that she understood the appellant’s position on such matters and fairness was served by giving the appellant an opportunity to address aspects of the evidence which were on the judge’s mind.

[35] The same comments apply to the trial judge’s questions about how the appellant was feeling as she was driving. The trial judge did not in any way show disdain for the appellant’s evidence when she asked the questions which she did on that topic. She was seeking clarification and at the same time providing the appellant with an opportunity to add to or further explain any sensations she was experiencing. Nothing about the nature of the questions or the way in which they were asked suggests an appearance of unfairness, particularly in the context of the defence raised at trial.

[36] The appellant also ties her allegations of unfairness to the fact that the trial judge later used evidence obtained through her questioning and through her enlargement of the photographs, to reject the appellant’s evidence. In my view no such unfairness was occasioned here. While in some respects the trial judge’s questions went beyond the exploration undertaken in the examinations of counsel, all the trial judge’s questions were firmly rooted in the evidence tendered by the parties. The appellant introduced the photos of the medication and the bottles they were contained in. There was an obvious difference between the shapes of the bottles, the labels on the bottles and the physical appearance of the tablets which the appellant testified she confused despite being an experienced pharmacist. The appellant testified about how she was feeling when driving and after being stopped by the police in response to questions posed by counsel. It was entirely reasonable and fair for the trial judge to ask additional questions of the nature described in Stucky about such matters.

[37] The trial judge was also obligated to consider the photographs and entitled to look at them carefully. They were provided to the court in electronic form as well as in hard copy. In terms of the differences between the appearance of the pills, at pp. 16-17 of her reasons the trial judge found that those differences could be seen in “close ups on the electronic copies, but they are also visible on the hard copy”.

[38] There is no basis in this case to support a concern that the trial judge undertook any form of examination or testing of an exhibit which went beyond what would be reasonably contemplated by the parties who tendered the evidence in both electronic and hard copy form at trial. For example, there is no indication that the trial judge used special software or anything of that sort to manipulate or view the evidence in a manner that would undermine the fairness of the trial. I point out that when electronic images are provided to a court they will appear in more detail if displayed on a large monitor rather than a small one. That is the sort of thing that is now well understood. The trial judge specified in her reasons that because the images were provided electronically she was able to “zoom in on the electronic copies” (Reasons for Judgment, p. 15, l. 13). It is not clear to me whether that common technique was also used by the parties during the trial, although it often is. In any event, in the circumstances of this case I see no unfairness. I am unable to accept that this action took the trial judge outside of her role as a neutral adjudicator and turned her into an investigator, particularly where the trial judge noted that the differences between the tablets could be seen on the hard copy.

[39] I also note that the trial judge's questioning of the appellant fell far short of any of the three types of problematic interventions listed by Martin J.A. in Valley, at pp. 231-232, which were mentioned by the Court of Appeal in Stucky, at para. 71. The questioning was not extensive. It was not conducted in a manner which conveyed that the trial judge had placed the authority of her office on the side of the prosecution. Nor did the trial judge's relatively modest questioning of the appellant significantly interfere with the presentation of the defence or preclude the appellant from telling her story in her own way.

[40] I do observe that the trial judge failed to ask counsel whether they had any questions arising out of the court's questions. As noted in Stucky, at para. 66, this is a relevant consideration. However, while it would have been better if the trial judge had offered counsel that opportunity, I do not think that the failure to do so converts what occurred in this case into an unfair process. Experienced counsel did not object to the trial judge's questions and neither asked for the opportunity to pose questions arising from the court's questions.

[41] I am unable to give effect to this ground of appeal.

Did the trial judge misapprehend the evidence that the appellant mistakenly took lorazepam because she was sick, sleep deprived and rushing to work?

[42] In R. v. Morissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 217-218, Doherty J.A. held:

A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.

At p. 221 Doherty J.A. went on to explain that where it is shown that the trial judge misapprehended the evidence and that error played "an essential part in the reasoning process resulting in a conviction", a miscarriage of justice will have been established and the appeal will generally be allowed.

[43] In this case I am far from persuaded the trial judge misapprehended the evidence as alleged. It is not submitted that the trial judge made any mistake as to the substance of the evidence. The appellant asserts that the trial judge failed to consider the evidence and, even more strenuously, that the trial judge failed to give proper effect to the appellant’s evidence of illness, fatigue and rushing on the morning of the alleged offence.

[44] In my respectful view the submission that the trial judge failed to consider this evidence is untenable. The trial judge referred to the appellant’s evidence in this regard throughout her reasons for judgment. When summarizing the defence evidence towards the beginning of her “Analysis and Findings” the trial judge, at p. 10 of her reasons, reviewed the evidence of the appellant that she felt ill and took medications on the evening before the alleged offence and that she felt ill and took medications for that reason on the morning of the offence. The trial judge also referred to the appellant’s testimony that she did not fall asleep until 5:00 or 6:00 a.m. and that she felt tired as well as ill on the morning of the alleged offence.

[45] At pp. 11-12 of her reasons the trial judge reviewed the appellant’s evidence to the effect that she felt both tired and sick while driving to work the next morning. Later, on p. 12, the trial judge again indicated that the appellant testified that she did not take the lorazepam “on purpose”.

[46] In terms of fatigue, the trial judge mentioned during her analysis, at p. 17 of her reasons when reviewing the pressure that the appellant was under, that the appellant had worked for 10 days straight before this incident. At p. 18 of her reasons the trial judge again referred to the appellant’s evidence that she felt tired and sick when driving to work, confirming the appellant’s testimony that she felt nauseous, which was the reason she intended to take domperidone. These references demonstrate that the trial judge considered the evidence in question. In other words, she took it into account.

[47] In my view the related submission that the trial judge failed to give proper effect to the evidence is also untenable. In support of this submission the appellant refers to authorities relating to the sufficiency of a trial judge’s reasons. In particular, the appellant refers to R. v. Ho, 2012 ONSC 3884, at paras. 38-39, 42; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20; and R. v. Craig, [2006] O.J. No. 112 (C.A.), at para. 2. The appellant submits that a trial judge’s reasons will only be sufficient if they are responsive to the live issues in the case and the parties’ key arguments and are also sufficient for appellate review.

[48] The appellant contends that the trial judge’s reasons fail this test because she never explained why the appellant’s illness, fatigue and rushing did not at least a raise reasonable doubt regarding her alleged medication mistake. The appellant submits this shortcoming reflects that the trial judge erred by failing to appreciate the impact of the evidence and thereby failed to give it proper effect.

[49] In my view the cases cited have little application here. In Ho, a summary conviction appeal, Durno J. was persuaded that the trial judge’s reasons on critical points were merely conclusory and did not address why the trial judge decided the case as he did. In Craig, the Court of Appeal held that the trial judge in a sexual assault case identified critical issues but failed to deal with them.

[50] In the case before me the issue was whether the appellant’s testimony was sufficiently credible to raise a reasonable doubt about her having the mens rea required for conviction. The trial judge identified that issue and spent about two-thirds of her 21-page judgment explaining why she rejected the appellant’s testimony that she took the lorazepam by mistake. Her reasons demonstrate that in doing so she considered the appellant’s evidence of illness, fatigue and being in a rush to get to work.

[51] The fact that the trial judge did not give the appellant’s evidence of illness, fatigue and rushing the effect the appellant hoped for does not mean that the trial judge misapprehended the evidence. The trial judge’s reasons do not suggest that she treated the evidence of illness, fatigue and rushing as not relevant or of no consequence. Read as a whole and in the context of the record, the trial judge’s reasons demonstrate that she understood that these were factors which could support that a mistake was made. However, the trial judge found that the complainant’s testimony that she took the lorazepam by mistake was simply not credible for several reasons which she clearly articulated.

[52] At no time did the trial judge reject the appellant’s testimony that she was feeling ill and fatigued and was rushing. If that had been the basis for the trial judge’s decision the appellant’s submission that the trial judge failed to engage sufficiently with that issue would have more force. A reading of the record as a whole suggests that there was no challenge to the appellant’s testimony that she was feeling ill and was fatigued. The fact that the appellant was ill, fatigued and rushing, while relevant, was not determinative. The trial judge carefully explained why, despite that evidence, she concluded that the appellant’s claim of making a mistake was not credible. That conclusion was reasonably available on the evidence.

[53] Pulling back to take a broader view of the case, having regard to the entirety of the trial judge’s reasons viewed against the background of the record, I do not accept that trial judge’s reasons are inadequate or that the trial judge failed to give effect to the evidence in question. For extensive reasons, which are entitled to deference because they rest on a factual finding of credibility, the trial judge rejected the defence advanced at trial after considering all the evidence, including that the appellant was ill, fatigued and rushing to get to work.

[54] Another jurist might have reached a different conclusion based on the evidence, but the trial judge was in the privileged position of seeing and hearing the appellant’s testimony.

[55] This ground of appeal fails.

Did the trial judge err by rejecting the appellant’s evidence that she mistakenly took the wrong medication because it was “largely unchallenged” in cross-examination?

[56] The appellant made no oral submissions in support of this ground of appeal, relying entirely on the submissions in her factum. In her factum the appellant refers to two cases in support of a submission that, until shaken, evidence is entitled to some weight: R. v. Ying, [1930] O.J. No. 120 (S.C. Ont. App. Div.), at para. 10; R. v. McKeown, [1971] S.C.R. 446, at p. 14 (Q.L.). Both authorities concern circumstances where a trial judge gave no reason for disbelieving or failing to accept unchallenged evidence on a pivotal point. That is not the situation in this case.

[57] In support of this ground of appeal the appellant relies on the fact that most of the cross-examination of the appellant at trial focused on the appellant’s failure to report to the College of Pharmacists that she had been charged with this offence. I observe that the cross-examination of the appellant proceeded for 30 pages, from pp. 34-64 of the transcript. By my reckoning, about 19 to 20 pages of that was related to the appellant’s failure to report the charge against her to the College of Pharmacists. While some of the other cross-examination related to introductory or non-significant matters the appellant was briefly cross-examined about what the photographs in Exhibit 1 showed regarding the differences between the labels on the lorazepam and domperidone bottles. The appellant was also cross-examined about her experience in taking the two drugs, about knowing the differences between them and about the fact that, as a pharmacist, she had expertise in identifying drugs that the average user does not. The appellant was also cross-examined briefly about the nature and extent of her use of lorazepam.

[58] I agree with the respondent’s submission that the appellant was cross-examined on matters beyond her failure to report to the College of Pharmacists which went directly to the likelihood she made a mistake by confusing lorazepam for domperidone. While Crown counsel at trial may have focused on the failure to report the pending charge against her to the College of Pharmacists, the appellant’s assertion that she made a mistake did not go unchallenged. The premise for this ground of appeal is undermined.

[59] In determining whether a witness’s evidence on a particular point should be accepted, the fact that the point was not challenged is no doubt an appropriate factor for a trial judge to consider. It does not follow, however, that a trial judge is obliged to accept what the witness said simply because they were not challenged on the point in cross-examination, particularly where there is evidence from other sources in the record which has a bearing on the issue in question.

[60] I am not persuaded the trial judge erred as alleged.

Conclusion

[61] The appeal is dismissed.

Released: July 10, 2024 Justice F. Dawson

COURT FILE NO.: SCA(P) 465/22 DATE: 2024 07 10

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING Respondent

- and -

CHERRY MAGDALLAH

REASONS FOR JUDGMENT

F. Dawson J.

Released: July 10, 2024