R v Walters, 2012 ABQB 221

Court of Queen ’ s Bench of Alberta Citation: R v Walters, 2012 ABQB 221 Date: 20120403 Docket: 100989748P1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Leslie Allan Walters Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] Leslie Allan Walters was convicted of driving when his blood alcohol concentration was over 80 mg/100 ml contrary to s. 253(1) (

b) of the Criminal Code . He appeals the conviction on the ground that the trial judge failed to give adequate reasons. [ 2 ] The Crown called Cst. Weiss on the voir dire . The Defence called Cst. Farrell. [ 3 ] Cst. Weiss testified that, on July 29, 2010, he was on duty in a marked police cruiser when he observed a raised, white Ford

F150 driving at approximately 70 km/h in a 50 km/h zone. The vehicle then slowed and rolled through a stop sign at a speed ofapproximately 20 to 30 km/h. [4] Cst. Weiss initiated a traffic stop and approached the driver’s side of the vehicle while his partner, Cst. Farrell, approachedthe passenger side. Cst. Weiss noted that Mr. Walters answered questions slowly, his eyes were very glossy and he spoke slowly with aslight slur. Because the truck was quite tall, Cst. Weiss asked Mr. Walters to step out so that he could speak with him face-to-face. Hedetected an odour of liquor on Mr.

Walters’ breath while he was speaking. When questioned about the odour of alcohol, Mr. Waltersadmitted to consuming three drinks that evening. Citing the indicia of glossy eyes, odour of alcohol, admission of consumption, andslurred speech, Cst. Weiss formed the opinion that Mr. Walters’ ability to operate a motor vehicle was impaired by alcohol. He placedMr. Walters under arrest. [5] On cross-examination, Cst. Weiss testified that he did not recollect which direction his cruiser was going when he firstspotted Mr. Walters’ vehicle.

During a stop of this nature, he usually observes whether a driver has difficulty or fumbles while trying toproduce documents. Mr. Walters’ fine-motor skills seemed to be “okay”. [6] Cst. Farrell testified that he and Cst. Weiss were travelling in the area of Roper Road and 51st Avenue prior to spotting Mr.Walters’ vehicle. Cst. Farrell could not recall which direction the cruiser was travelling at that time. He observed the smell of liquor onMr. Walters’ breath while Mr. Walters was speaking with Cst. Weiss. He made a number of comments in his notebook about the indiciaof impairment he observed.

He did not note any slurred speech. He commented that he did not engage Mr. Walters in enoughconversation to make a note of it. He could not recall whether or not Mr. Walters had slurred speech. [7] At the close of the voir dire, the trial judge made no comment on any discrepancy or contradiction between the evidence ofthe two officers, nor did he make any reference to Cst. Farrell’s evidence. [8] Mr. Walters argues that the trial judge was required to resolve contradictory evidence between the two police officers whowitnessed the same event yet provided different evidence regarding: where Mr.

Walters’ vehicle was first seen in relation to the policecruiser, and whether or not Mr. Walters slurred his words while speaking to the officers. The absence of reasons for the preference ofone statement over the other and the conclusory reasons for conviction render the reasons inadequate. [9] The Crown submits that Cst. Farrell’s evidence did not undermine or contradict Cst. Weiss’ evidence. Cst. Weiss had fargreater involvement in the investigation and had taken more detailed notes. Therefore, the trial judge did not err in looking at theevidence available to Cst.

Weiss in determining whether he had reasonable grounds to demand a breath sample. The Test for Adequacy of Reasons [10] In R v Burns, (SCC), [1994] 1 SCR 656, McLachlin J. (as she then was) observed that to require trialjudges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system ofjustice immeasurably. Trial judges are presumed to know the law within which they work daily.

If they state their conclusions briefly,and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateralaspects of the case. [11] Arbour J. observed, in R v Pan, 2001 SCC 42, [2001] 2 SCR 344, that the reasoning process in which a judge engages priorto releasing oral or written reasons is similar to the jury's deliberations.

A judge's written reasons only reveal the judge's ultimaterationale for deciding the case as he or she did, and do not necessarily reveal all the thought processes leading up to the final reasons. [12] In R v Sheppard, 2002 SCC 26, [2002] 1 SCR 869, Binnie J. for the Court held that the absence or inadequacy of reasons,while potentially supportive of a conclusion of unreasonable verdict, is not the mischief aimed at by the remedy. In other words,inadequacy of reasons is not a free-standing right of appeal.

However, where the absence of reasons prevents a Court of Appeal fromproperly reviewing the correctness of the unknown, unexpressed pathway taken by the trial judge in reaching his conclusion and from

properly assessing whether he had properly addressed the principal issues in the case, then the failure to deliver meaningful reasons constitutes an error of law within the meaning of s. 686(1)(a)(ii). [ 13 ] In R v REM , [2008] 3 SCR 3 , 2008 SCC 51 , the Court held that reasons are adequate if, read in context, they show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. The trial judge is not required to set out every finding or conclusion in the process of arriving at the verdict.

It is reasonable to infer that the trial judge understood the import of the evidence, and the basic principles of criminal law at issue in the trial. Reasons are to be considered in the context of the record before the court. The reasons need not be so detailed that they allow an appeal court to retry the entire case on appeal, nor that they prove that the trial judge was alive to and considered all of the evidence, or answered each and every argument of counsel. Analysis [ 14 ] The key issue before the trial judge on the voir dire was whether the police had reasonable grounds to demand a sample of Mr.

Walters ’ breath. [ 15 ] As stated above, the test for adequacy of reasons is whether the absence of reasons prevents a court of appeal from properly reviewing the correctness of the unknown, unexpressed pathway taken by the trial judge in reaching his conclusion and from properly assessing whether he had properly addressed the principal issues in the case. Reasons are to be considered in the context of the record. Therefore, a review of the transcript is required. [ 16 ] Cst. Weiss testified that he initially approached the driver ’ s side and Cst.

Farrell approached the passenger side “ like a standard vehicle stop ” . Cst. Weiss further testified that the odour of alcohol became apparent to him after Mr. Walters had exited the vehicle and extinguished his cigarette. [ 17 ] Cst. Farrell recalled that he noted the smell of alcohol when Mr. Walters was talking to Cst. Weiss, but could not recall what they were discussing. He was close enough to detect the odour of liquor. There was no evidence as to how long Cst. Farrell was in Mr. Walters ’ presence. He could not recall whether Mr. Walters was in the vehicle or outside of it at the time.

He did not recall having engaged Mr. Walters in much conversation. He did not recall whether Mr. Walters was speaking normally. He agreed that he would look for slurred speech in an impaired driving investigation. Cst. Farrell disagreed that the absence of a mention of slurring in his notes signified that Mr. Walters did not slur his speech, because he “ was not the member in charge of the investigation ” . The most that defence counsel was able to extract on the significance of the absence of mention of slurring in the notes was a concession by Cst.

Farrell that “ potentially ” he did not notice slurred speech. [ 18 ] Neither witness could recall which direction the police cruiser was going when they first spotted Mr. Walters ’ vehicle. [ 19 ] Defence counsel concluded his oral submissions at trial by stating: So in

summary, ...there ’ s a reliability problem...These police officers don ’ t really recall and their notes don ’ t assist them where they were when they first observed this motor vehicle. ...And then the other issue the Court will have to deal with...is why two police officers, side by side, noting indicia of impairment, one says, slurred speech, getting more slurred in fact, and the other one says, I have no note of it, it ’ s important to me, and doesn ’ t have any recollection of the nature of the speech.

That coupled with the good fine motor skills of the accused when he retrieved his licence, insurance, and registration ... there ’ s no marked departure on the driving pattern is why this counsel is submitting respectfully that it falls below the standard. [ 20 ] The trial judge commenced his brief reasons by stating: In this case, we have the evidence of Constable Weiss, which was very clear.

[ 21 ] The trial judge then found that: Mr. Walters ’ vehicle was speeding and it went through a stop sign without stopping, Mr. Walters had slurred, slow speech, his breath smelled of alcohol, his eyes were glossy, and he admitted to having consumed three drinks. After very briefly summarizing Cst.

Weiss ’ evidence, the trial judge concluded: In all the circumstances, based on this, there was both subjectively and objectively reasonable and probable grounds to come to the conclusion that the accused ’ s ability to operate a motor vehicle was impaired by reason of the consumption of alcohol. [ 22 ] Does the brevity of these reasons prevent a court of appeal from properly reviewing the correctness of the unexpressed pathway taken by the trial judge in reaching his conclusion and from properly assessing whether he had properly addressed the principal issues in the case? [ 23 ] It is reasonable to conclude that the trial judge was alive to the issue of reliability, because it was the key issue emphasized by defence counsel just prior to the brief decision being rendered.

It is also reasonable to infer that the trial judge found Cst. Weiss ’ evidence to be reliable. [ 24 ] By virtue of the fact that the trial judge made no mention of Cst. Farrell ’ s evidence, it is reasonable to infer that the trial judge was of the view that it neither undermined nor added to Cst. Weiss ’ testimony. Attributing this inference to the trial judge logically flows from a review of the transcript.

Further, the transcript itself would enable a court of appeal to review the reasonableness of the trial judge ’ s factual assessments in this regard. [ 25 ] It is also reasonable to infer that the trial judge attributed little or no weight to the fact that neither officer could recall which direction the cruiser was travelling when they first spotted Mr. Walters ’ truck. Again, the transcript and the reasons together provide a basis for review. [ 26 ] In this case, the record enables this court, on appeal, to review the inference arising from the trial judge ’ s decision that the evidence of Cst.

Weiss was not undermined by Cst. Farrell ’ s evidence. The trial judge did not expressly state this finding. However, the reasons in the context of the record are adequate to explain the pathway of the trial judge ’ s reasoning for the purposes of review. [ 27 ] As this was the sole ground for appeal, it is unnecessary to review the trial judge ’ s conclusions. Conclusion [ 28 ] The appeal is dismissed. Heard on the 22 nd day of March, 2012. Dated at the City of Edmonton, Alberta this 3 rd day of April, 2012.

D.L. Shelley J.C.Q.B.A. Appearances: J. Snowdon for the Respondent P. Northcott for the Appellant