R. v. Pelech, 2011 ABQB 88

Court of Queen ’ s Bench of Alberta Citation: R. v. Pelech, 2011 ABQB 88 Date: 20110317 Docket: 091562215S1 Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Travis Gregory Pelech Appellant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Pelech appeals his conviction for impaired driving. He argues that the trial judge failed to recognize the ambiguity of the evidence; a shorthand way to summarize the cluster of appellant concerns is that the judge failed to apply the rule in Hodge’s case. [ 2 ] The appeal is allowed. [ 3 ] The standard of review here is that of correctness.

The extricable error of law in the trial judge’s assessment of whether the facts satisfied the legal test is the failure to account for the rule in Hodge’s case: in the circumstances here, the trial judge was obliged to consider whether the only rational inference from the evidence was that the accused’s impairment was caused by alcohol.

Cases and authority cited [4] By the Appellant: R. v. Andrews 1996 ABCA 23 ; R. v. Tavone

(2007) Ontario SC 32676 ; R. v. Landes(1997) (SK KB), 161 Saskatchewan Reports 305 ; R. v. Vandale (S.K. P.C.); R. v. VonMaldeghem

(2005) ABQB 558; R. v. Biniaris 2000 SCC 15 ; R. v. P. (W.R.) 2007 ABCA 187 ; R. v. Eastwood 2008ABCA 181; R. v. Waters 2010 ABQB 607 . [5] By the Crown: R. v. M. (R.E.) 2008 SCC 51 , 2008 CarswellBC 2037 (S.C.C.); R. v. Morin 1988 CarswellOnt 82(S.C.C.); Housen v. Nikolaisen 2002 SCC 33 , 2002 CarswellSask 178 (S.C.C.); R. v. Stellato (ON CA),1993 CarswellOnt 74 (S.C.C.); R. v. Power 2002 ABQB 153 , 2002 CarswellAlta 237 (Q.B.); R. v. Burns, (SCC), [1994] 1 S.C.R. 656; R. v. Morrisey (ON CA), 1995 CarswellOnt 18 (C.A.). [6] By the court: R. v Griffin 2009 SCC 28, [2009] S.C.J. No 28. 1.

Background [7] On December 6, 2009, at approximately 2:00 a.m., an Edmonton police officer was conducting a TADD Operation,otherwise known as Targeting All Drunk Drivers, in the area of the Hudson Tap House in a commercial or industrial area on the southside in the City of Edmonton, Province of Alberta. [8] The police officer observed a Jeep exit the parking lot with no lights on. He then observed the vehicle to proceed throughthree stop signs without even hesitating and without applying the brakes. At that point, he activated his emergency equipment to conducta traffic stop.

Initially he activated his overhead lights and then intermittently hit the siren to have the vehicle respond. Because therewas no response from the driver of the Jeep, the police officer pulled up beside the Jeep and turned on his alley lights to get the attentionof the driver at which point the Jeep pulled into a parking lot. Mr. Pelech, the driver of the Jeep, then got out of his vehicle and stated"I'm sorry, I'm sorry, I'm so fucked". [9] The officer directed Mr. Pelech back to his vehicle; thereafter, the police officer approached the driver’s side of the vehicleand noted that Mr.

Pelech had glossy eyes, a slight slur in his speech, cotton mouth and then a strong odour of liquor from his breath.The police officer told Mr. Pelech that the stop was because he was driving with no lights on, he had driven through three stop signs andthe plate was coming back as not being registered to that vehicle. [10] At that point the police officer formed reasonable and probable grounds that Mr.

Pelech's ability to operate a motor vehiclewas impaired by alcohol and directed him to step out of the vehicle and placed him under arrest for impaired driving. [11] In direct examination the police officer explained that the glossy or glassy eyes were very shiny or plastic looking. Withrespect to the manner of driving, the police officer testified that he had followed the Jeep for approximately four blocks in total [12] In cross examination the police officer acknowledged the following: a. there was heavy snow from the night prior on the ground; b. the weather was cold - approximately minus 30; c Mr.

Pelech was cooperative;

d. he had never met Mr. Pelech before and did not know how he normally talked; e. glossy eyes could be caused by things other than alcohol; f. Mr. Pelech was not slurring every word; g. Mr. Pelech did not have difficulty understanding the police officer; h. he made no inquiries of Mr. Pelech with respect to consumption of alcohol or at what time he may have arrived at the location of the parking lot; i. Mr. Pelech exited his vehicle without apparent difficulty: "he just swung the door open and kind of jumped out of the car"; j. it was apparent that Mr.

Pelech had good dexterity and muscular coordination; k. neither he nor Mr. Pelech had any apparent difficulty slipping on the road due to the snow conditions; l. throughout his dealings with Mr. Pelech, he had no difficulty walking or keeping his balance. Mr. Pelech had no apparent difficulty entering or exiting the police vehicle; m. there were no speed problems with Mr. Pelech’s driving and there was no other traffic at the time. Mr. Pelech’s vehicle did not weave, and Mr.

Pelech had no difficult maneuvering his vehicle. [ 13 ] Before the commencement of the trial, there had been considerable discussion amongst the prosecutor, defence counsel and the court concerning the second count with which Mr. Pelech was originally charged. That count related to a demand made under s. 254 of the Code. In the result, the prosecution did not proceed with that charge.

Once that issue was settled, the impaired driving trial began. [ 14 ] Upon the conclusion of the testimony and the submissions, the trial judge began his analysis by commenting: THE COURT: The accused is charged with impaired driving pursuant to

section 253(

a) of the Code, and in light of that charge, it is important to be mindful that the offense is not one of merely drinking and driving, but rather the evidence must demonstrate, as the Code says, that the accused's ability to operate a motor vehicle is impaired by alcohol or a drug. So the point I am making is that the focus of the evidence is to assess the accused's ability to operate a motor vehicle as opposed to simply whether or not he has had a drink or two and is then driving , an error that some Courts fall into and our superior Courts have cautioned Courts such as this to be mindful of that distinction.

Our superior Courts as well have held that the impaired driving count can be made out by proof of any degree of impairment ranging from slight to great.

The Court must review all of the observations and all of the evidence which inferentially either support or negate any impairment of the accused's mental and physical abilities, and then determine whether or not the Crown has satisfied its burden of proof beyond a reasonable doubt in terms of the reasonable inferences that are to be drawn from those observations and from the evidence as to whether or not the accused's ability to operate a motor vehicle was impaired by alcohol, and that the degree of impairment, as I have noted, can range from slight to great. (Emphasis added) [ 15 ] The trial judge then came to the following conclusion: THE COURT: Having considered all of the evidence, particularly the driving pattern, most particularly the time of night and no headlights and no running lights, passage through not one, not two, but three stop signs, not only without stopping but without slowing, that is, without applying the brakes, whatever, and not responding to firstly emergency lights, that being the wigwag lights on top of the police vehicle, not responding to an intermittent siren from approximately a car-length behind, and only responding when the alley light is operative, together with the signs of impairment indicated by the police officer, most significantly to me what he described as a strong odour of liquor on Mr.

Pelech's breath, I am satisfied beyond a reasonable doubt that the inferences drawn therefrom establish Mr. Pelech's ability to operate a motor vehicle was impaired by alcohol, and I convict Mr. Pelech accordingly. 2. Standard of review [ 16 ] The parties agree, and I agree with them, that findings of fact are not to be reversed on appeal unless the appellant establishes that the trial judge made palpable or overriding errors: Housen .

[17] However, with respect, I am of the view that the issue on this appeal is a question of mixed fact and law rather than an issueabout a finding of fact. On that issue, in Housen, the Supreme Court said the following: D. Standard of Review for Questions of Mixed Fact and Law 26 At the outset, it is important to distinguish questions of mixed fact and law from factual findings (whether direct findings orinferences). Questions of mixed fact and law involve applying a legal standard to a set of facts: Canada (Director of Investigation andResearch) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, at para. 35.

On the other hand, factual findings or inferencesrequire making a conclusion of fact based on a set of facts. Both mixed fact and law and fact findings often involve drawing inferences;the difference lies in whether the inference drawn is legal or factual. Because of this similarity, the two types of questions are sometimesconfounded. This confusion was pointed out by A. L.

Goodhart in "Appeals on Questions of Fact" (1955), 71 L.Q.R. 402, at p. 405: The distinction between [the perception of facts and the evaluation of facts] tends to be obfuscated because we use such a phrase as "thejudge found as a fact that the defendant had been negligent," when what we mean to say is that "the judge found as a fact that thedefendant had done acts A and B, and as a matter of opinion he reached the conclusion that it was not reasonable for the defendant tohave acted in that way." . . . 27 Once it has been determined that a matter being reviewed involves the application of a legal standard to a set of facts, and is thus aquestion of mixed fact and law, then the appropriate standard of review must be determined and applied.

Given the different standards ofreview applicable to questions of law and questions of fact, it is often difficult to determine what the applicable standard of review is. InSoutham, supra, at para. 39, this Court illustrated how an error on a question of mixed fact and law can amount to a pure error of lawsubject to the correctness standard: ... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considersonly A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C.

If the correct testrequires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law. . . . 33 Where, however, an erroneous finding of the trial judge can be traced to an error in his or her characterization of the legal standard,then this encroaches on the law-making role of an appellate court, and less deference is required, consistent with a "correctness" standardof review.

This nuance was recognized by this Court in St-Jean v. Mercier, [2002] 1 S.C.R. 491, 2002 SCC 15, at paras. 48-49: A question "about whether the facts satisfy the legal tests" is one of mixed law and fact. Stated differently, "whether the defendantsatisfied the appropriate standard of care is a question of mixed law and fact" (Southam, at para. 35).

Generally, such a question, once the facts have been established without overriding and palpable error, is to be reviewed on a standardof correctness since the standard of care is normative and is a question of law within the normal purview of both the trial and appellate courts. [Emphasisadded.] 34 A good example of this subtle principle can be found in Rhône (The) v. Peter A.B. Widener (The), (SCC), [1993]1 S.C.R. 497, at pp. 515-16. In that case the issue was the identification of certain individuals within a corporate structure as directing

minds. This is a mixed question of law and fact. However, the erroneous finding of the courts below was easily traceable to an error of law which could be extricated from the mixed question of law and fact. The extricable question of law was the issue of the functions which are required in order to be properly identified as a "directing mind" within a corporate structure (pp. 515-16). In the opinion of Iacobucci J. for the majority of the Court (at p. 526): With respect, I think that the courts below overemphasized the significance of sub-delegation in this case.

The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis, whether at head office or across the sea . 35 Stated differently, the lower courts committed an error in law by finding that sub-delegation was a factor identifying a person who is part of the "directing mind" of a company, when the correct legal factor characterizing a "directing mind" is in fact "the capacity to exercise decision-making authority on matters of corporate policy".

This mischaracterization of the proper legal test (the legal requirements to be a "directing mind") infected or tainted the lower courts' factual conclusion that Captain Kelch was part of the directing mind. As this erroneous finding can be traced to an error in law, less deference was required and the applicable standard was one of correctness. 36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum.

Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of "mixed law and fact".

Where the legal principle is not readily extricable, then the matter is one of "mixed law and fact" and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge's

interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. [ 18 ] Here, the trial judge was entitled to make certain inferences about which Mr. Pelech complains. For example, the trial judge was entitle to infer, merely because of its name, that the Hudson Tap House was an establishment which served alcoholic drinks. The Compact Edition of the Oxford Dictionary gives several examples in English literature of “tap house” being used to describe a drinking establishment.

In any event, that is a finding of fact on which the greatest deference must be given to the trial judge. Also, the evidence is clear that the police officer had grounds for making a demand; however, there is no charge relating to a demand before the court. [ 19 ] Mr. Pelech’s real complaint is that the trial judge misapplied the law relating to reasonable doubt. The trial judge concluded that Mr. Pelech’s ability to drive was impaired by alcohol. There can be no quarrel with the first part of that conclusion, ie that Mr. Pelech’s ability to drive was impaired.

In other words, this is not a case where it was important to determine whether there was impairment, however slight; the parties and the trial judge all agree that the law clearly states that any degree of impairment, whether slight or gross, is sufficient to prove the offence. Impairment was easily made out. The issue on this appeal is whether the trial judge adequately addressed the legal principle that, where a case is based on circumstantial evidence, as is the situation here, an inference of guilt can only be drawn where it is the only rational inference which can be drawn. 3.

Did the trial judge consider that he could only conclude that the accused was impaired by alcohol if that was the only rational inference that could be drawn from the evidence? [ 20 ] I have concluded that the trial judge failed to take into account the rule in Hodge’s case, thereby committing the error of failing to consider whether the inference of impairment by alcohol was the only rational inference that could be drawn from the evidence. [ 21 ] The prosecutor relies on Power , a decision of Watson J., as he then was, who said: 53 The approach to circumstantial evidence in proof of the condition of the motorist is not such as to require that the Trial Judge be satisfied that the proscribed impaired condition is the only rational conclusion to be drawn from the whole of the evidence, as in Hodge’s Case.

Watson J. cited the Supreme Court of Canada’s decision in Cooper as authority for that proposition.

With respect, I am of the view thatWatson J. over-extended the effect of Cooper. [22] In coming to that conclusion, I rely on a relatively recent decision of the S.C.C., Griffin, which refers to and explains Cooperand also explains the effect of the rule in Hodge’s Case in contemporary law: 32 Following the judge's response to the jury's question, counsel for the respondents objected to the use of the "equally rationalinference" terminology, arguing that it could suggest to the jury that a burden of proof rested on Mr. Pelech.

In the absence of the jury,the trial judge explained to counsel that his use of the phrase "equally rational inference" in this context was equivalent to saying"another reasonable inference".

Nevertheless, out of an abundance of caution, he recalled the jury and gave the following clarification: Just on the last point when dealing with circumstantial evidence and reasonable doubt and the way the two (2) meld together, I just wantto make sure that it's clear in your mind that in order to render a verdict of guilt, based upon circumstantial evidence, the guilt of Mr.Pelech would have to be the only rational inference that you could draw from the circumstantial evidence.

If there's any other rational inference you can draw from the evidennce that would mean that you would not be able to render a verdict ofguilt based on circumstantial evidence, because then there would be - at best you would have reached maybe a probability or a likelihoodof guilt, but not have reached that higher standard of proof beyond a reasonable doubt. [A.R., at p. 216.] 33 We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue isone of identification: R. v. Cooper, (SCC), [1978] 1 S.C.R. 860.

The essential component of an instruction oncircumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the onlyrational inference that can be drawn from the circumstantial evidence is that Mr. Griffin is guilty. Imparting the necessary message to thejury may be achieved in different ways: R. v. Fleet (1997), (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. Seealso R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), (ON CA), 142C.C.C. (3d) 380 (Ont.

C.A.), at para. 29. 34 There is no question that the instructions in the present case fulfilled this essential requirement. The trial judge repeatedly madeclear to the jury that a guilty verdict can only be rendered if guilt is the sole rational inference to be drawn from the circumstantialevidence.

The issue to be resolved, rather, is whether the use of the words "equally rational" and "as reasonable" detracted from theotherwise correct instructions by leading jurors to believe, as the respondents contend, that they could only acquit if they found aninnocent inference from the circumstantial evidence of the same weight as an inference of guilt.

It is argued that the impugned languagehad the potential to engage the jury in an abstract comparative exercise, assessing the qualitative reasonableness of one inference againstanother when the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt. 35 Read in context, as all jury instructions must be, it becomes apparent that the words "equally rational" and "as reasonable" were notused as measures of the comparative value or weight of a non-guilty inference, but, as the judge himself explained to counsel, to describethe quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence.

Indeed, no one argues that thejury should be entitled to base its decision on irrational or unreasonable inferences. When the instructions on circumstantial evidence areread as a whole, it is more likely than not that they would have been understood by the jury in the manner intended by the trial judge.That said, it is my view that the instructions on this point were not as clear as they could have been and, consequently, the trial judge waswise to recharge the jury as he did. 36 Both parties and the court below, unanimous on this point, agreed that the clarifying recharge was entirely correct.

Griffin andHarris argue, however, that this final charge could not have rectified any possible confusion that may have resulted from the use of theimpugned language because the trial judge failed to refer back to the problematic phrases employed in the earlier instructions.

Thisargument was accepted by the majority of the Court of Appeal, and rejected by Côté J.A. [23] Here, although the trial judge did not have to refer to the rule in Hodge’s case by name, and did not have to use any dedicatedformula in discussing the way in which he was assessing circumstantial evidence, he was obliged to hold the rule in Hodge’s case incontemplation while coming to his decision. As Watson J.A., as he now is, said in Eastwood:

The presumption that judges know the law is not, however, an automatic trump card to apply if the trial judge’s reasons do not reveal that the law was correctly applied: R. v P.(W.R.) 2007 ABCA 187 , 412 A.R. 176 at para. 18 . [ 24 ] Here, the trial judge’s use of the word “focus” at the outset of his decision emphasized the judge’s perspective, which was on whether there was slight impairment rather than on the equally important, and indeed critical, issue of whether any impairment could be attributed only to alcohol. [ 25 ] Mr.

Pelech points out that many cases have held that even a strong odour of alcohol ( Tavone ) or driving without headlights ( Vandale ) is not supportive of a conclusion of impairment by alcohol. As the case law points out, negligence and oversight are also possible causes of impairment. We can take judicial notice of other factors, frequently alluded to in the general media or sometimes themselves the subject of legislation, factors such as fatigue, distraction by passengers, distraction by use of cell phones or texting devices, are also potential causes of impairment.

Where the evidence warrants, a judge must consider whether impairment by alcohol is the only rational inference that can be drawn from the evidence. [ 26 ] Here, given the ambiguity of the evidence, ambiguity which was recognized by the trial judge, (physical dexterity for example) and the totality of the evidence (time of day and presence of passenger, for example), there was an obligation on the trial judge to consider the rule in Hodge’s case before making inferences about the cause of Mr. Pelech’s impairment. 4.

Conclusion [ 27 ] In light of the view which I have taken of the error made by the trial judge, the appropriate disposition of the appeal is to order a new trial. Heard on the 10 th day of February, 2011. Dated at the City of Edmonton, Alberta this 16 th day of March, 2011. J.B. Veit J.C.Q.B.A. Appearances: Julie Snowdon, Crown Prosecutor’s Office for the Crown/Respondent Thomas E. Plupek, Pahl Howard Rowland LLP for the Appellant