Court File and Parties

Court File No.: CR-23-106-AP Date: 20240122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING R. Moir, for the Crown Respondent

- and -

BEN TIMOTHY PETERSON Self-represented Appellant

HEARD: January 18, 2024

JUDGMENT ON SUMMARY CONVICTION APPEAL (on Appeal from the Judgment of Justice K. McCallum, dated February 2, 2023)

BALTMAN J.

Introduction

[1] The Appellant appeals his conviction on one count of Impaired Operation of a vehicle under s. 320.14(1) of the Criminal Code, following a two-day trial before Justice McCallum of the Ontario Court, Brampton. The trial occurred on February 1 and February 2 of 2023, and the Appellant was self-represented. His Honour delivered judgment on February 2, following the conclusion of the trial.

[2] There were two witnesses at trial. The Crown relied entirely on the evidence of Constable Murray Wood. The Appellant testified in his own defence.

[3] The Appellant has identified several grounds of appeal. They can be summarized as follows:

a. The trial judge failed to allow an 11(b) application to be heard, and failed to adjourn the matter in order to obtain transcripts; b. The trial judge failed to consider ss. 7, 8, and 9 of the Charter of Rights and Freedoms; c. The trial judge wrongly allowed the admission of character evidence and used bad character evidence in the reasons for judgment; and d. The trial judge misapprehended evidence related to factual issues throughout the trial.

[4] For the following reasons, I find none of the above grounds have any merit, and the appeal is therefore dismissed.

Factual Overview

[5] The Appellant is 44 years old and married. He was found sleeping in his vehicle on the night of his arrest, February 12, 2021, in the area of a break and entry call received by the arresting officer, PC Wood. Wood described the Appellant as “passed out” behind the wheel of his vehicle, with the engine running and the lights on. After several attempts to wake him (tapping on the window and shining his flashlight inside) before the Appellant responded, Wood noted that the Appellant was “groggy and confused” and appeared to be fumbling around the inside of the vehicle.

[6] In the course of a brief (6 minute) roadside investigation, Wood detected the odour of alcohol coming off the Appellant’s breath. The Appellant told Wood that he had been sleeping in his running motor vehicle for three to four hours. Wood noted that the Appellant had red glassy eyes, had difficulty getting out of the car, and stumbled against the police cruiser when directed there. No sobriety device was used. Wood formed the opinion that the Appellant was impaired, and placed him under arrest, transporting him to the local Peel Regional Police division.

[7] The Appellant testified that he was not intoxicated, but rather suffered from multiple health conditions that caused him to be dehydrated (red eyes), lose circulation (stumbling when standing) and slow in waking (medication). He also explained that his large body size resulted in a slow and difficult exit from his vehicle.

[8] At the division, the Appellant did not provide a breath sample, claiming he was not able to wear the mask required in the break room. He was subsequently charged with impaired driving.

Standard of Review

[9] The onus to be met by the appellant is set out in s. 686(1)(a) of the Criminal Code. The appeal may be allowed if I find that the decision of the trial judge,

a) is unreasonable or cannot be supported by the evidence (s.686(1)(a)(i)); b) is wrong on a decision on a question of law (s. 686(1)(a)(ii)); or c) results in a miscarriage of justice (s. 686(1)(a)(iii)).

[10] The standard of review to be applied was established by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33. As set out in paras. 1, 8 and 10 of the decision in Housen,

• the findings of fact made by the trial judge are to be given deference;
• those findings may only be set aside if the trial judge made a palpable and overriding error; and
• the standard of review with respect to a question of law is correctness.

The Issues on Appeal

Issue 1: Dismissal of 11(b) Charter Application

[11] The Appellant argues that the Trial Judge erred in not permitting the hearing for the alleged s. 11(b) breach to proceed. However, he failed to file the necessary materials for the court to address the issue. The Appellant has the onus of proving a Charter breach, and therefore it is his responsibility to file the transcripts that form the basis of the application: R. v. Codina, 2017 ONSC 4105, at paras. 11-23.

[12] The Appellant states that if transcripts were required, an adjournment should have been granted. However, further delay of the trial would have caused prejudice to the Crown. It is the accused’s duty to act proactively and, where he believes that his right to be tried within a reasonable time has not been respected, he should bring a motion for a stay before the trial is held: R. v. J.F., 2022 SCC 17, at paras. 34-36, 83.

[13] It is worth noting that we are now almost a year passed the hearing and the Appellant has still failed to perfect his 11(b) application. This illustrates that, even with an adjournment, he very likely would not have perfected the application.

Issue 2: Dismissal of Charter Application (ss. 7, 8, and 9)

[14] The Appellant asserts that the trial judge erred in not finding that his section 7, 8, and 9 Charter rights were breached during the police investigation. He further asserts that the evidence secured during the search should be excluded pursuant to s. 24(2) of the Charter.

[15] The trial judge accepted the foundational premise of the search and detention, namely that Wood was initially drawn to the area because he was investigating a separate matter and then came upon the Appellant’s vehicle, that the Appellant was found passed out over the wheel of his vehicle, and the vehicle was running and had its lights on. His finding is fully supported by the evidence. Further, Wood clearly had authority to conduct the search, under the Highway Traffic Act and/or the Criminal Code. And he conducted the search in an efficient manner, using reasonable steps to determine whether he had grounds for arrest: R. v. Smith, [1996] O.J. No. 372 (C.A.), at paras. 15, 20-22, 28; R. v. Orbanski, 2005 SCC 37, at paras. 40-44.

[16] At that point Wood had 21 years of experience, and was a qualified breath technician and drug recognition expert who had been involved in more than 500 impaired driving investigations.

[17] Wood also testified about the level of intoxication he observed and what indicators he relied upon. Given the trial judge found the Appellant guilty of impaired driving, it is implicit that he accepted that the officer had the necessary grounds to perform the searches he did during the investigation.

[18] As Wood was clearly acting within the authority of the Criminal Code and the Highway Traffic Act, the onus shifted to the Appellant to demonstrate the search was unreasonable: R. v. Cornell, 2010 SCC 31, at paras. 16-17. This he failed to do.

Issue 3: Bad Character Evidence

[19] The Appellant was formerly a paralegal whose license was revoked by the Law Society. He complains that the trial judge permitted bad character evidence to be introduced on that issue without explaining to the Appellant the potential for prejudice arising from that evidence, and then relied upon that evidence in coming to his decision.

[20] The Appellant knowingly put his character into evidence from early on in the trial, by testifying about his work as a paralegal within the community and in his workings with the court. He testified that he closed his paralegal business due to health issues. In cross-examination, the Crown elicited that following an investigation, the Law Society had ordered him to discontinue his practice. The Appellant claimed that he had already decided to close down his practice and that is why he failed to cooperate with the Law Society’s investigation.

[21] Moreover, as identified in para. 7 above, the Appellant had made his health a potential line of defence in the case. Consequently, the Crown was entitled to cross examine on whether the closing of his practice was truly health related or, in fact, arose from a different problem.

Issue 4: Findings of Fact and Credibility

[22] The Appellant complains that the trial judge made several errors in his interpretation of the evidence placed before the Court.

[23] An appellate court “may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable”: R. v. Clark, 2005 SCC 2, at para. 9.

[24] Here, the Appellant takes particular issue with the following paragraph from the trial judge’s reasons:

[The Appellant] also suggested an alternate explanation being that given his medical condition, the unsteadiness on his feet could be explained by the fact that he had just slept for a long period of time and his legs were still asleep. I did not put any weight in these explanations. [1]

[25] The Appellant argues this was an abrupt dismissal of a compelling explanation for his physical state, namely his evidence that he had a large belly that stuck out over his belt and impeded his circulation if he was sitting in the vehicle for a long time, causing his legs to fall asleep.

[26] But is clear that earlier in the trial judge’s reasons he considered that explanation:

Mr. Peterson has presented alternative explanations for his behaviour that evening. He testified that he always has to pull himself out of his vehicle by grabbing the door of the vehicle. He had been sleeping for three to four hours in the running motor vehicle. Given his medical condition, he testified that his movements are always slow and that his legs were still sleeping, so to speak, as he walked from his vehicle to the cruiser [2].

[27] The Appellant also complains that the trial judge failed to properly scrutinize Wood’s evidence, in particular Wood’s conclusion that he was impaired immediately upon seeing him asleep at the wheel. However, Wood’s evidence made it clear that he relied on numerous other indicia of impairment before arresting the Appellant, including a) Wood had to tap on the window several times and shine his flashlight into the vehicle before the Appellant responded; b) the Appellant appeared groggy, confused, disoriented and was fumbling around; c) the immediate smell of an alcoholic beverage on the Appellant’s breath after Wood opened the vehicle door; d) the Appellant’s eyes were red and glassy; e) the Appellant had to use the door to pull himself up while exiting the vehicle; and f) the Appellant stumbled against his vehicle upon being directed to the police cruiser.

[28] Importantly, the trial judge agreed with the Appellant that “there might be alternate explanations for all these indicia, individually and collectively.” But in following the law, and considering whether the officer’s subjective belief is objectively reasonable, he concluded that there were numerous objective indicia of impairment supporting Wood’s arrest. He properly considered the totality of the evidence when determining whether Wood had reasonable grounds to believe the Appellant was impaired: R. v. Morrissey, [1995] O.J. No. 639 (C.A.), at para. 28.

[29] As our Court of Appeal observed in R. v. Wadforth, 2009 ONCA 716, at para. 66, assessment of witnesses is the daily fare of trial judges. Belief or disbelief of witnesses is based on an “alloy of factors, not a purely intellectual exercise”. The inestimable advantage of the trial judge being able to watch and listen to witnesses should not be hindered by an appellate review.

Conclusion

[30] For the reasons set out above, the appeal is dismissed.

Baltman J. Released: January 22, 2024

[1] Transcript, Day 2, p. 130 [2] Transcript, Day 2, p. 128