COURT FILE NO.: 20-A9070

DATE: 2024/01/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent

– and –

DANIEL CURRIE Appellant

Don Couturier, for the Respondent/Crown

Mark Ertel, for the Appellant/Accused

HEARD: July 19, 2023

SUMMARY CONVICTION APPEAL On appeal from the decision of Justice C. Dorval, Ontario Court of Justice, at Ottawa, dated March 30, 2022

corthorn J.

Introduction

[1] Mr. Currie appeals his conviction on a single count under s. 320.14(1)(a) of the Criminal Code[^1] (operating a conveyance – a motor vehicle – while his ability to do so was impaired to any degree by alcohol). The offence date is February 1, 2020. The trial proceeded on September 9, 2021 and March 10, 2022. The conviction was entered on March 30, 2022.

[2] Mr. Currie requests that the conviction be set aside and that a new trial is ordered.

[3] The trial judge released written reasons[^2] (“Ruling”). The trial judge dismissed Mr. Currie’s application pursuant to s. 9 of the Canadian Charter of Rights and Freedoms. She concluded that the arresting officer had the requisite grounds to arrest Mr. Currie on February 1, 2020: Ruling, at para. 44. The trial judge found Mr. Currie guilty on both offences with which he was charged – impaired driving (s. 320.14(1)(a)) and operating a conveyance while having a blood alcohol concentration at a level in excess of the legal limit (s. 320.14(1)(b)). A conviction was entered on the first of the two charges.

Background

[4] The events giving rise to the charges against Mr. Currie occurred in the early morning hours on February 1, 2020. The Ottawa Police Service received two separate calls, from civilians, about a vehicle observed in the Orleans area. The first caller reported seeing a vehicle travelling on Highway 174 in the area of the Jeanne D’Arc and Place D’Orleans exits. The caller reported seeing the vehicle leave the highway, hit a snowbank, hit a road sign, return to the highway, and continue eastbound.

[5] The second caller reported seeing a white vehicle, with damage to its front end, parked on the side of Trim Road. The caller believed the driver of the vehicle was asleep at the wheel. The same caller reported later seeing the vehicle travelling on Trim Road.

[6] Cst. McCulloch, of the Ottawa Police Service, was the first of two officers dispatched in response to the information received from the civilian callers. Cst. McCulloch made his way to the Trim Road exit from Highway 174. He travelled north on Trim Road, and then on North Service Road, towards the Ottawa River. As the police cruiser got closer to the Ottawa River, the officer saw two fresh tire tracks in the snow. Cst. McCulloch followed the tire tracks to a parking lot near the banks of the Ottawa River. He encountered the Currie vehicle, as it was entering the parking lot.

[7] After a second officer arrived at the parking lot, Cst. McCulloch was successful in positioning his cruiser to block the path of the Currie vehicle. Mr. Currie brought his vehicle to a stop, following which he interacted with Cst. McCulloch and was arrested.

[8] At trial, Cst. McCulloch gave evidence about his observations of tire tracks in the snow on North Service Road; of the Currie vehicle as it entered, travelled through, and attempted to exit the parking lot; and of Mr. Currie’s demeanour from the time at which the officer first approached the Currie vehicle to the officer’s time with Mr. Currie at the Elgin Street Police Station. The other officer, Cst. Gauthier, testified as to her observations of the Currie vehicle and of the interaction between Mr. Currie and Cst. McCulloch.

[9] The trial judge’s analysis of the evidence of the two officers is central to the grounds upon which Mr. Currie relies on this appeal.

The Decision at Trial

[10] For the moment, I provide a summary of the trial judge’s decision. A more detailed analysis of the trial judge’s reasons follows below.

[11] At para. 33 of the Ruling, the trial judge lists the following grounds for arrest upon which Cst. McCulloch relied:

1. information received with respect to the collision with a sign and seeing the damage to the front of the vehicle
2. driving away from the collision
3. information received on the second call to police about the driver having fallen asleep behind the steering wheel
4. the failure to respond to the police cruiser lights and siren
5. the driving from side to side
6. driving on top of a pile of snow
7. the odour of alcohol
8. bloodshot eyes
9. the admission of having consumed alcohol
10. the over confidence and belligerent attitude.[^3]

[12] At para. 44, the trial judge reaches the following conclusion on the Charter application:

Given the totality of his knowledge and observations, I conclude that Cst[.] McCulloch had ample grounds to believe that the driver’s ability to drive his conveyance was impaired and that the impairment was caused by the consumption of alcohol. I conclude that his subjective belief is supported by an objective analysis of his observations. The [Charter application] is denied.

[13] In convicting Mr. Currie on the impaired driving charge, the trial judge relies on the evidence of Cst. McCulloch and the evidence of the civilian witness who observed a vehicle as it left the highway, travelled into a snowbank, and struck a road sign: Ruling, at paras. 45, 47. The trial judge concludes that vehicle was the Currie vehicle: Ruling, at para. 46.

[14] When convicting Mr. Currie on the charge pursuant to s. 320.14(1)(b), the trial judge relies on evidence from the Intoxilyzer technician and the results of the breath samples taken at the Police Station on the morning of February 1, 2020.

Standard of Review

[15] 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)).

[16] The standard of review to be applied was established by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. 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

[17] On this appeal, Mr. Currie does not assert that the verdict is unreasonable; nor does he submit that the trial judge made an error of law. The grounds of appeal are focussed on the trial judge’s alleged misapprehension of the evidence.

[18] The following issues are determined on this appeal:

1. Did the trial judge misapprehend the evidence?

2. If the answer to Issue No. 1 is “yes”, did the trial judge’s misapprehension of the evidence result in a miscarriage of justice?

[19] Only if the answer to both Issue Nos. 1 and 2 is “yes”, does Mr. Currie succeed on the appeal and is a new trial ordered.

Issue No. 1 - Did the trial judge misapprehend the evidence?

a) The Law

[20] In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538, the Court of Appeal for Ontario explains that a misapprehension of evidence includes “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 the evidence.”

[21] In R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, the Supreme Court of Canada considers the standard to be met by an appellant who relies on an alleged misapprehension of the evidence. Reflecting on the decision in Morrissey, Binnie J. says the following at para. 2:

Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.

[22] Six years later, in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, the Supreme Court of Canada provided guidance for a reviewing court applying the Lohrer test. At paras. 53-56, Lebel J. highlights the following principles. First, for a new trial to be ordered based on a miscarriage of justice arising from a misapprehension of evidence, something more than an “apparent” mistake is required: at para. 53. The trial judge must have made a real error – with the plain language or thrust of the trial judge’s reasons disclosing an actual mistake: at para. 53.

[23] Second, reviewing courts are cautioned against dissecting, parsing, or microscopically examining the trial judge’s reasons: at para. 54. A reviewing court is to remain faithful to, and is not to embark on an overly critically reading of, the trial judge’s reasons: at para. 54.

[24] Third, Lebel J. addresses the type of misapprehension of the evidence required to support a conclusion that there has been a miscarriage of justice. At para. 56, Lebel J. says the following:

For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based […] In other words, an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground.

[25] On this appeal, Mr. Currie submits the trial judge misapprehended the evidence related to the Charter application and the evidence related to the substantive charges.

b) The Appellant’s Submissions Regarding the Trial Judge’s Reasons

[26] First, Mr. Currie makes what he describes as a “basic argument” regarding the trial judge’s overall consideration of the evidence. Mr. Currie submits that the trial judge failed to consider evidence relevant to the key issues at trial and failed to resolve inconsistencies in that evidence.

[27] Second, Mr. Currie submits that the trial judge did not analyse the reliability of the evidence of the main witness, Cst. McCulloch.

[28] Third, Mr. Currie makes the following submissions regarding specific matters about which he alleges the trial judge misapprehended the evidence:

• There was insufficient time for Cst. McCulloch to make the observations of Mr. Currie’s driving about which the officer testified and upon which he relied in support of his grounds for arrest. Cst. McCulloch changed his evidence so as to support the existence of sufficient time within which to make the observations he reports having made, including those upon which he relied when forming his subjective grounds for arrest;[^4]

• Cst. McCulloch’s evidence about the extent of Mr. Currie’s belligerent behaviour, after his vehicle was stopped in the parking lot, changed from examination in chief to cross-examination (and the information about the belligerence was not communicated to the Intoxilyzer technician);

• The trial judge over-emphasized the information received from the dispatcher (i.e., based on the 9-1-1 calls from the two civilians) as a factor in Cst. McCulloch’s subjectively formed grounds for arrest; and

• The trial judge failed to consider lack of physical signs of impairment.

[29] I will address each of the three components of Mr. Currie’s submissions.

c) Analysis

i) The Alleged Failure to Resolve Inconsistencies in the Evidence

[30] I find that the trial judge resolved inconsistencies in the evidence of Cst. McCulloch and Cst. Gauthier and addressed inconsistencies between the evidence of Cst. McCulloch in examination in chief and on cross-examination. For example, and as discussed in greater detail below, the trial judge was careful to address the correction made by Cst. McCulloch as to the amount of time during which the cruiser lights and siren remained activated: Ruling, at paras. 12, 32, 36.

[31] As another example, the trial judge explained why, where the evidence of the two officers differed, she preferred the evidence of Cst. McCulloch over the evidence of Cst. Gauthier. A primary reason for the trial judge doing so is that she found Cst. Gauthier to be a poor historian and her evidence to be unreliable generally: Ruling, at para. 39.

[32] As other examples of the trial judge resolving inconsistencies in the evidence, I refer to and rely on matters addressed in the eight bullet points listed at para. 23 of the Crown’s factum.

ii) The Alleged Failure to Analyse the Reliability of Cst. McCulloch as a Witness

[33] I agree with the submission made at para. 24 of the Crown’s factum: “It is inaccurate to state that Cst. McCulloch’s reliability was a ‘critical, unanalyzed issue’ in this case.”

[34] The same portions of the trial judge’s reasons discussed in subsection (i), above, are relevant to and demonstrate the extent to which the trial judge addressed the reliability of Cst. McCulloch’s evidence. In addition to considering that evidence on a point-by-point basis, the trial judge’s reasons demonstrate she concluded that the totality of the evidence corroborated the evidence of Cst. McCulloch.

iii) Misapprehension of the Evidence About Specific Matters

[35] The submissions which fall within this category are relevant to one or both of the Charter application and the substantive charges.

[36] Regarding the former, the standard to be met for the existence of reasonable and probable grounds for arrest is not in dispute. The Crown and the appellant agree that (a) an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest, and (b) those grounds must be justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241.

[37] For the reasons which follow, I find that the trial judge did not misapprehend the evidence.

▪ Observations of Mr. Currie’s Driving

[38] Mr. Currie’s submissions on this point changed somewhat from his factum to the oral submissions. In his factum, Mr. Currie addressed the amount of time available to Cst. McCulloch within which to make observations about Mr. Currie’s driving and the reliability of those observations. In oral submissions, Mr. Currie also submitted that the trial judge erred in her treatment of those observations when listing the factors upon which Cst. McCulloch relied in formulating his subjective grounds for arrest.

- The Time Available Within Which to Make the Observations

[39] Mr. Currie submits there is a significant discrepancy between Cst. McCulloch’s evidence in examination in chief and that on cross-examination regarding the amount of time the cruiser lights and siren were activated. In examination in chief, Cst. McCulloch relied on the dispatch time and the on-scene time when testifying that the cruiser lights and siren were activated for “probably three or four minutes.”

[40] In cross-examination, Cst. McCulloch acknowledged that the cruiser lights and siren were activated for less than 45 seconds, possibly for as little as 15 to 20 seconds. I pause to note that, in cross-examination, Cst. McCulloch testified that his “math on the fly is not that good”.

[41] At para. 36 of the Ruling, the trial judge addresses this discrepancy in the officer’s evidence. She therein identifies that Cst. McCulloch admitted his error and explained that the error was based on an incorrect interpretation of the call logs for the incident. The trial judge accepts the officer’s explanation for the error: Ruling, at para. 36.

[42] Mr. Currie asks this reviewing court to conclude that the change in Cst. McCulloch’s evidence – from an estimate of three to four minutes to 20 seconds or fewer – is dramatic. Mr. Currie submits the change is so dramatic that it is not possible to determine whether the grounds that informed the officer’s subjective belief as to reasonable and probable grounds for arrest were objectively reasonable. I reject that submission.

[43] Cst. McCulloch effectively offered two explanations for the error made when first estimating the amount of time the cruiser lights and siren were activated. Those explanations are (a) the reliance on the entries in the call logs, and (b) his lack of acumen in performing arithmetic calculations “on the fly”.

[44] In the language of Watt J.A. at para. 66 of the decision in R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, I find that, the trial judge was, after watching and listening to Cst. McCulloch, entitled to rely on the impression which she formed of the officer as a witness to reconcile the differences in his evidence about the duration of the activation of the cruiser lights and sirens. Continuing in the language from the same paragraph of Wadforth, the impression formed and the reconciliation of the evidence by the trial judge should not be squandered because of a lack of a more detailed or precise explanation from her.

- The Reliability of the Observations of Tire Tracks in the Snow

[45] Next, Mr. Currie submits that the trial judge failed to assess the reliability of Cst. McCulloch’s description of the tire tracks in the snow. Mr. Currie asks this reviewing court to conclude that (a) Cst. McCulloch’s evidence is that his cruiser was travelling at a speed of 150 kilometres per hour (“k.p.h.”) when the observations about the tire tracks were made, and (b) the trial judge failed to consider the reliability of those observations, given the speed of the cruiser at the time at which the observations were made.

[46] I reject Mr. Currie’s submissions about the speed of the cruiser at the time the observations of the tire tracks were made, and about the lack of reliability of those observations. First, Cst. McCulloch did not testify that the cruiser was travelling at a speed of 150 k.p.h. when he made the observations of the tire tracks in the snow. The only reference to a speed of 150 k.p.h. is in a question posed of Cst. McCulloch on cross-examination.

[47] On cross-examination, Defence Counsel addressed with Cst. McCulloch the variation in the speed at which the cruiser was travelling as the officer attempted to locate and stop the Currie vehicle:

Q. So, you said you were going 80 to 100 at the start. You said you sped up, and presumably when you got to the parking lot, you had to slow down, right?

A. Sure. Yup, sure, okay.

Q. So, 120 kilometres an hour seems like a generous average speed for that one kilometre, isn’t that …

A. Sure. Yes.

Q. Because some of it you’re slowing down, some of it you’re going 80 to 100 and some of it, maybe you’re going 150 or something, but just as an average speed, I’m going to say 120 seems fair, doesn’t it?

[48] When answering questions which immediately precede and immediately follow this exchange, Cst. McCulloch repeatedly makes the point that he is unable to definitely state that the average speed of the cruiser was 120 k.p.h.; states that he is simply unable to give an estimate of the average speed of the cruiser; and says he was not looking at the speedometer.

[49] Cst. McCulloch was not cross-examined about his ability to observe the tire tracks when his cruiser was travelling at speeds of 80 to 120 k.p.h. or higher. Defence Counsel did not put to Cst. McCulloch that the cruiser was travelling at too high a rate of speed to permit him to discern the tire tracks in the snow.

[50] The fact that the trial judge did not explicitly address whether Cst. McCulloch could have made the observations of the tire tracks, as described by him, does not amount to a misapprehension of the evidence.

- The Tire Tracks and the Grounds for Arrest

[51] Last, Mr. Currie submits the trial judge misapprehended the evidence because she failed to include in the list of grounds for arrest a factor about which Cst. McCulloch testified during examination in chief – seeing “tire tracks in the snow, noticing them going from side to side” as the cruiser headed northbound on Trim Road towards the Ottawa River. I reject that submission.

[52] Item 5 in the list of grounds for arrest is “the driving from side to side”. In the same answer as that quoted in the preceding paragraph, Cst. McCulloch emphasizes how much of the roadway the tire tracks consumed – to the point he was concerned the vehicle could end up in the Ottawa River.

[53] Cst. McCulloch described how the Currie vehicle was travelling after he came upon it at the parking lot and activated the cruiser lights and siren. Cst. McCulloch described seeing the Currie vehicle swerving from side to side at that point.

[54] The trial judge’s reference to “the driving from side to side”, without differentiating between the tire tracks in the snow and the manner in which the Currie vehicle was travelling about the parking lot, does not amount to a real error or an actual mistake within the meaning of Sinclair, at para. 53. Mr. Currie’s submission on this point amounts to the type of dissecting, parsing, or microscopic examination of the trial judge’s reasons against which reviewing courts are cautioned: Sinclair, at para. 54.

▪ Mr. Currie’s Belligerent Behaviour

[55] Mr. Currie submits that the trial judge failed to appreciate the extent to which Cst. McCulloch’s evidence on this subject changed from examination in chief to cross-examination. I reject that submission.

[56] I agree with the Crown’s responding submissions, set out in paras. 30-33 of the Crown’s factum. I find that, in examination in chief, Cst. McCulloch provided a comprehensive account of his interaction with Mr. Currie, including the extent of the latter’s belligerence, from the point in time at which the officer approached the Currie vehicle to the period subsequent to the arrest. The difference, if any, between Cst. McCulloch’s evidence on that point in examination in chief and on cross-examination is a matter of clarification and not of the addition of ‘new’ evidence.

[57] The trial judge addressed the credibility of Cst. McCulloch’s description of Mr. Currie’s behaviour prior to arrest and the inclusion of that behaviour in the officer’s subjective belief of reasonable grounds for arrest. In doing so, the trial judge considered the evidence of Mr. Currie’s belligerence subsequent to the time of arrest; she accepted that the attitude displayed by Mr. Currie in video footage of him at the Police Station was initiated at the scene: Ruling, at para. 40.

▪ The Information from the Two Civilian Callers

[58] Mr. Currie submits the trial judge misapprehended the evidence by including in the list of grounds for arrest the information received from the two civilians who called the Ottawa Police Service (items 1, 2, and 3). Mr. Currie adds that the trial judge over-emphasized the importance of the civilian information in Cst. McCulloch’s formulation of subjective grounds for arrest.

[59] In support of those submissions, Mr. Currie points to the evidence of Cst. McCulloch on cross-examination. The specific exchange upon which Mr. Currie relies is limited to the following two questions and answers:

Q. There’s the information that your (sic) received, although it’s kind of anonymous, conclusory information that you have to check out yourself, right?

A. Yes.

Q. It’s the kind of information that gets an investigation started, but really, you’re the one who has to form grounds about the arrest.

A. Yes.

[60] Nothing in that exchange supports an interpretation or a conclusion that, when forming his grounds for arrest, Cst. McCulloch did not rely to some extent on the information provided by the civilian callers. The fact that Cst. McCulloch relied on the information from the civilian callers as a basis upon which to start the investigation does not render it either impossible or impermissible for the officer to rely on that information when formulating his grounds for arrest.

[61] In examination in chief, Cst. McCulloch testified that he was concerned the vehicle he believed had made the side-to-side tire tracks in the snow (see below, and was headed in the direction of the Ottawa River, was being driven by an individual who was impaired by alcohol. The officer testified that his concern in that regard stemmed from the information provided by at least one of the civilian callers.

[62] The trial judge accurately reflected Cst. McCulloch’s evidence by including items 1, 2, and 3 in the list of grounds for arrest.

▪ The Absence of Signs of Physical Impairment

[63] Mr. Currie’s submission addresses the lack of signs of physical impairment only. Mr. Currie’s submission on this point overlooks (a) other, non-physical signs of impairment observed by Cst. McCulloch, and (b) that signs of physical impairment are not required to support a finding of impairment.

[64] The trial judge was required to consider the totality of the evidence, including the non-physical signs of impairment, in determining whether impairment was established beyond a reasonable doubt: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 55-56. The trial judge was required to do so because whether a finding of impairment is made turns on the trial judge’s conclusion as to whether the accused person’s ability to drive is impacted: R. v. Stellato, 1993 CanLII 3375 (ON CA), 1993 ONCA 3375, 12 O.R. (3d) 90 at pp. 93, 95, aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478; and Bush, at para. 47.

[65] Impairment can be established even without the presence of physical signs of impairment. For example, impairment can be established based on an unexplained road accident (the driving observed by the first civilian caller who saw the Currie vehicle), an odour of alcohol (as detected by Cst. McCulloch when he approached the Currie vehicle), and an admission of consumption of alcohol (as made by Mr. Currie, while he remained seated in his vehicle): R. v. Mills (2006), 72 W.C.B. (2d) 512 (Ont. S.C.).

d) Conclusion

[66] The answer to the question posed as Issue No. 1 is, “no”; the trial judge did not misapprehend the evidence. Given that finding, it is not necessary to consider Issue No. 2.

Disposition

[67] The appeal from the decision of the trial judge is dismissed.

Madam Justice Sylvia Corthorn

Released: January 4, 2024

COURT FILE NO.: 20-A9070 DATE: 2024/01/04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Respondent

– and –

DANIEL CURRIE Appellant

RULING ON A SUMMARY CONVICTION APPEAL

Madam Justice S. Corthorn

Released: January 4, 2024

[^1]: R.S.C. 1985, c. C-46. All section numbers referred to in this ruling are from the Criminal Code unless otherwise stated. [^2]: R. v. Currie (30 March, 2022), Ottawa, CR-20-A9070 (Ont. C.J.) [^3]: As it appears in the Ruling, the list of grounds does not include numbers. I numbered the list for ease of reference. The grounds of arrest are otherwise reproduced exactly as they appear in the trial judge’s reasons. [^4]: In the factum filed on behalf of Mr. Currie makes these submissions as two separate points. For the purpose of this ruling, I address them together.