R v Park, 2016 ABQB 670

Court of Queen’s Bench of Alberta Citation: R v Park, 2016 ABQB 670 Date: 20161128 Docket: 151558970S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Choo Young Park Applicant (Appellant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Appeal from the Conviction by The Honorable Judge J. B. Kerby Dated the 15 th day of June, 2016 (Docket: 151558970P1) Introduction [ 1 ] On July 15, 2016, the Appellant was convicted of refusing to comply with a roadside breath demand, contrary to section 254(2) (

b) of the Criminal Code of Canada (the “ Code ”). The trial judge, Judge J. B. Kerby sentenced the Appellant to a fine of $1,000

plus a victim surcharge of $300 and a 1-year driving prohibition. [ 2 ] The Appellant now appeals from that conviction. Facts and Evidence [ 3 ] The pertinent facts and evidence have been primarily drawn from the Appellant’s counsel’s Brief, as modified by the Crown counsel in their respective briefs. The Crown called four witnesses and the Defence called no evidence. [ 4 ] Ms. Lylick, a Crown witness, testified that on December 1, 2015, she was working as a waitress at the Original Joe’s restaurant on Ellerslie Road in Edmonton.

The Appellant attended the restaurant in the late evening with three others and stayed for a period that lasted between 30-45 minutes. Ms. Lylick recalls that while at the restaurant, the Appellant and a female friend shared a bottle of wine, two pints and some food. [ 5 ] Ms. Lylick testified that when the Appellant left the restaurant with his female friend, he had to support her while walking out to a Toyota SUV. The Appellant was observed by Ms. Lylick to be standing outside of his friend’s vehicle and was attempting to guide her out of the parking stall. [ 6 ] Ms.

Lylick became concerned that the two were intoxicated and should not be driving. She went outside and was soon joined by Cst. Fonteyne, who was off duty and patronizing the restaurant. Both of them suggested that the Appellant and his friend return to the restaurant so that a taxi could be called for them. [ 7 ] The Appellant returned to the restaurant with his friend and waited for the taxi to arrive. Ms. Lylick testified that the Appellant was insisting they were fine to drive and “seemed to have just not been very clear with what they were saying...” [Trial Transcript [TT]11/25-29].

Upon the taxi’s arrival, the two left the restaurant, apparently dismissed it and walked to a nearby parking lot where they entered a second vehicle. In response, Ms. Lylick called the police to report a possible impaired driver. [ 8 ] Ms. Lylick testified that after about 20 minutes, she observed the Appellant exited the second vehicle and returned to the Toyota SUV, where he attempted to enter the SUV and leave. At this time, the Appellant was approached again by Cst. Fonteyne; and after observing an exchange between the two, Ms.

Lylick observed the Appellant exited the SUV, returned to the second vehicle, entered the driver’s seat and drove away. [ 9 ] During cross-examination, Ms. Lylick testified that the Appellant had a thick accent. [ 10 ] Cst. Fonteyne testified that he was off-duty and patronizing the same restaurant as did the Appellant on December 1, 2015. While there he observed the Appellant and his female friend left the bar and walked towards a Toyota SUV. He described them both as holding each other up, being quite loud and stated they both appeared “very intoxicated.” [TT, 21/30-33]. [ 11 ] Cst.

Fonteyne observed the female enter the SUV and begin backing out while the Appellant directed her from outside of the vehicle. Believing them to be impaired, Cst. Fonteyne advised Ms. Lylick, who in turn advised him that she would get the license plate number and call the police. Cst. Fonteyne accompanied her outside and, convinced the Appellant and his friend to return to the restaurant and wait for a taxi, and parked the SUV back in the stall. [ 12 ] And when the taxi arrived, the Appellant and his friend were observed to leave the restaurant, but did not enter the taxi. Cst. Fonteyne was then advised by Ms.

Lylick that the two had walked to and were now sitting inside of a second vehicle, which Cst. Fonteyne identified as a Hyundai Genesis. [ 13 ] Upon noticing the Appellant return to the SUV and begin backing it out of the parking stall, Cst. Fonteyne exited the restaurant to confront the Appellant. Cst. Fonteyne testified that the Appellant became “belligerent and quite aggressive” [TT, 23/17], whereas he had initially been “jovial [and] easy to deal with” [TT, 24/4], which led him to return to the restaurant to avoid a confrontation.

The Appellant was then observed to exit the SUV and walk back towards the Hyundai. [ 14 ] While observing the Appellant, Cst. Fonteyne noted him to be leaning on his female friend for support and to be unsteady on his feet, and also noted “a strong odour of beverage alcohol coming from his mouth.” [TT, 23/36-39]. [ 15 ] During Cross Examination, Cst. Fonteyne agreed that he wrote a 2-page statement the day after the incident when his memory of the event was fresher in his mind.

He acknowledged that he made no mention in that statement of the Appellant leaning on his friend for support, but rather that it was she who was leaning on him for support and whom appeared heavily intoxicated. Cst. Fontyene agreed with the suggestion that this was what he meant when he testified earlier that they were both leaning on each other for support. [TT, 26/14-40]. [ 16 ] Cst. Hartwell testified that he was on duty on the night of December 1, 2015 and working as a Temporary Acting Sergeant.

In response to a call of a possible impaired driver, he assisted by responding to the address associated to the license plate of the Hyundai. Cst. Hartwell arrived at the address at approximately 0010 hours on December 2, 2015, at which point he observed a Hyundai matching the suspect-vehicle description parked running in front of the address with two occupants. [ 17 ] Cst. Hartwell then approached the Hyundai and advised the Appellant, who was in the driver’s seat, that he was investigating an impaired driving complaint. An odour of alcohol was noted to be emanating from the vehicle, but Cst.

Hartwell could not determine its origin. The Appellant answered in the affirmative when asked whether he had consumed any alcohol that night, at which point Cst. Hartwell directed that the Appellant accompany him to his police vehicle. Once alone with the Appellant in his police vehicle, Cst. Hartwell noted a strong odour of liquor emanating from the Appellant when he spoke. Cst. Hartwell testified he spoke briefly with the Appellant while they were in his police vehicle, but did not recall the specific details of the conversation. Although Cst.

Hartwell did say “he didn’t notice anything out of the ordinary” with respect to the Accused, this was immediately after he had said “[t]he only

observations [sic] that I made [was] about the smell” [TT, 37/23-24]. [ 18 ] According to Cst. Hartwell, shortly after his arrival on scene, Cst. Gamble also arrived on scene. Cst. Hartwell however, could not say precisely when Cst. Gamble arrived, apart from testifying that it was “very shortly after [the Appellant] entered [his] vehicle.” [TT, 40/16-19]. He later clarified that it would have been “approximately 5 minutes, but probably not longer than 10 minutes at [...] the maximum” between the time he arrived on scene to when Cst. Gamble arrived. [TT, 42/2-6].

He then testified it would have been “in the range of 2 minutes probably” from the point of Cst. Gamble arriving and the Appellant being turned over to him. Cst. Gamble then removed the Appellant from Cst. Hartwell and took over the investigation. [ 19 ] In terms of the Appellant’s sobriety, Cst. Hartwell testified that he “didn’t notice anything out of the ordinary.” [TT, 37/21- 26]. The Appellant was further noted as being “extremely cooperative.” [TT, 39/11]. [ 20 ] During Cross Examination the admission of consumption occurred once the Appellant was placed in Cst.

Hartwell’s police vehicle, rather than while he was still seated in the Hyundai. [TT, 45/15-24]. [ 21 ] Cst. Hartwell testified that “[t]o be quite frank, as an acting supervisor, it’s not normally my place to complete an impaired investigation...[and] if I become involved in [...] an onerous investigation like an impaired investigation I’d be distracted from my other duties. So, in order to ensure I could complete that, that’s why I turned the investigation over to Constable Gamble.” [TT, 46/31-39]. [ 22 ] Cst.

Hartwell acknowledged the importance of avoiding unreasonable delay in impaired driving investigations. He further acknowledged that he could have made an ASD demand and conducted an ASD test if he had an ASD, but did not recall whether he had one with him. [TT, 47/3-12]. [ 23 ] Cst. Gamble testified that he was on duty and working the overnight shift from December 1-2, 2015. He testified that he made an ASD demand of the Appellant approximately 2-3 minutes after arriving. [TT, 59/4-10] During that 2-3 minute period, he was speaking with Cst. Hartwell regarding the investigation up to the point of his arrival.

The only information passed on to Cst. Gamble was that the Appellant was the person occupying the driver’s seat of the Hyundai. [TT, 61/26-37]. The Crown adds that Cst. Gamble also testified that he was advised by Cst. Hartwell that “the vehicle was running when he arrived” [TT, 61/26-30]. [ 24 ] After speaking with Cst. Hartwell, Cst. Gamble embarked upon his own impaired driving investigation. Upon opening the door to Cst. Hartwell’s police vehicle, Cst. Gamble immediately noted a strong odour of alcohol coming from within. The Appellant was directed to exit the vehicle.

No balance issues were observed, though Cst. Gamble did notice that the Appellant “had a fairly strong accent.” [TT, 64/25-27] Cst. Gamble testified that despite the thick accent, he was able to understand the Appellant, that the Appellant appeared able to understand him, and that he did not have any concerns about their ability to communicate with one another. [TT, 65/20- 28]. [ 25 ] Cst. Gamble testified that he asked the Appellant whether he had consumed any alcohol; and as to the response from the Appellant, Cst.

Gamble’s testimony was: “I don’t have an exact quote, but he indicated that he had a couple.” [TT, 64/36]. Cst. Gamble then formed a suspicion that the Appellant had alcohol in his body, which led to him placing the Appellant in the rear of his police vehicle to conduct an ASD test. [ 26 ] At 0016 hours, Cst. Gamble read the Appellant an ASD demand. When asked if he had taken any special precautions when reading the demand to the Appellant, Cst. Gamble stated the following: “Well, with Mr.

Park, I find that lots of -- it’s legal writing, so lots of people have a difficult time listening to it, so I did make sure to read it extra slow and pronounce my words very accurately so that Mr. Park would be able to understand.” [TT, 68/41 - 69/2] [ 27 ] The Appellant’s response to the demand was to ask Cst. Gamble to read it again. After reading it a second time, the Appellant stated “I will not” when asked if he would comply. [TT, 68/27-28] Cst.

Gamble then testified to explaining in plain language that the Appellant would be charged if he refused to comply, and further indicated that the Appellant understood this. When asked how the Appellant indicated his understanding, Cst. Gamble could not point to a specific statement from him, but simply testified that “I know that [the Appellant] indicated that he understood.” [TT, 68/37-39] [ 28 ] At 0017 hours, the Appellant was arrested for refusing to provide a roadside breath sample. [ 29 ] During Cross Examination Cst.

Gamble confirmed the Appellant had a heavy accent and formed the impression that English was not his first language. [TT, 73/19] Cst. Gamble did not recall whether he actually presented an ASD to the Appellant. [TT, 73/21-23] [ 30 ] All of the evidence was heard within a blended voir dire after which the evidence was admitted by consent into the trial proper. A number of discrete issues were then argued at length. Pages 76-101 of the trial transcript contain submissions in respect of the following issues: (

i) whether the lack of evidence concerning what body qualified Cst. Gamble to administer an ASD rendered the demand unlawful; (ii) whether the ASD demand was made forthwith; and (iii) whether the Appellant was arbitrarily detained when he was moved from his vehicle to Cst. Hartwell’s. Trial Judge’s Decision [ 31 ] The trial judge’s decision, reproduced primarily from the Appellant’s counsel’s brief and the trial transcript, is as follows: THE COURT: I have also heard Crown’s argument, and I am going to adopt Crown’s argument and all those submissions on those.

I am in agreement with the Crown in regards to your first issue, which is did he have authority to make the demand. MR. O’NEILL: I’m sorry? THE COURT: Was he authorized to make the demand.

MR. O’NEILL: Right. THE COURT: And I agree that the wording of Section 254(2) does allow a peace officer to make the demand. MR. O’NEILL: Right. THE COURT: So I think you fail on that. In regards to the forthwith, I agree with Crown’s submissions in that regard, and I find in favour of the Crown in that regard that it was forthwith. And in regard to the arbitrary detention, I am also in agreement with the Crown’s submissions and adopt them as part of my reasons.

So your arguments fail. [TT, 101/40 - 102/20] [ 32 ] In the end result, the trial judge, in addressing the issue of whether the Crown has proven beyond a reasonable doubt that the Appellant refused the ASD demand, gave the following judgment in favour of the Crown: THE COURT: Thank you. Mr. O’Neill, I have re-read my notes again and listened to counsel. Constable Gamble’s evidence was that he did note a strong odour of alcohol from the vehicle. The accused was asked to exit the vehicle and come to his place. There was no balance difficulties, but there was a strong accident [sic].

There was an admission of consumption of alcoholic beverages. At that time, Constable Gamble formed a suspicion that the accused had alcohol in his body or blood. He noted nothing unusual about his demeanour. At 12:16 a.m., the Approved Screening Device demand was read from his notebook. That was read into the court record. No issue was taken with the form or content of that demand. The accused was asked: will you comply with this demand? He answered: I need you to read it again. The demand was re-read, or the officer said he read it slower than the first time.

When he asked will you comply with this demand, there was a response: I wil1 not. So the officer clarified with the accused that if he refuses to supply a sample, he will be charged under the Criminal Code of Canada . I note that is within the body of the demand read to him twice as well. The accused indicated he understood, and the refusal was maintained. I find that the Crown has proved beyond a reasonable doubt that there was a wilful refusal.

I do not find any evidence before me that there was a lack of understanding by the accused with respect to the demand, and therefore, I do find the accused guilty of refusal under Section 254(2) . We will go to sentence. [TT, 108/1-20] Grounds of Appeal [ 33 ] The Appellant alleges that the trial judge erred in three ways: 1. The learned trial judge erred by failing to provide sufficient reasons for meaningful appellate review; 2. The learned trial judge erred by failing to consider key evidence before him respecting the Appellant’s ability to fully understand the ASD demand; and 3.

The learned trial judge erred in finding that the Crown had proven that the Appellant had clearly and unequivocally refused to comply with the breath demand. Standard of Review [ 34 ] The leading authority on the standard of appellate review is Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235. Three rules emerge from that decision: (

a) On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness (para 8); (

b) The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a “palpable and overriding error” (para 10); and (

c) 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 deferential standard. The general rule is that, where the issue on appeal involves the trial judge’s

interpretation of the evidence as a whole, the conclusions at trial should not be overturned absent palpable and overriding error (at paras 32, 36). [ 35 ] If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention: R v Sheppard , 2002 SCC 26 at para 25 , [2002] SCC 26. [ 36 ] The Supreme Court also indicated in Sheppard at para 55 (10) that: Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient.

There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)( b )(iii) proviso. [ 37 ] In R v LRS , 2016 ABCA 307 at para 10 , our Court of Appeal held that: (

a) Trial judges have considerable leeway in their appreciation of the evidence and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt: R v Biniaris , 2000 SCC 15 at paras 24 , 37, [2000] 1 SCR 381. (

b) Findings of fact and assessment of credibility by a trial judge are entitled to great deference, and should only be interfered

with on appeal if they are unreasonable, or in other words if they display palpable and overriding error: FH v McDougall, 2008 SCC 53at paras 55, 72, [2008] 3 SCR 41; R v W(R), (SCC), [1992] 2 SCR 122 at 131-32, 137 NR 214. (

c) It is not the role of appellate courts to reweigh the evidence and retry the case. It is not sufficient that an appellate courtmight have a different opinion on the credibility of the witnesses: R v Gagnon, 2006 SCC 17 at para 10, [2006] 1 SCR 621. [38] I will now proceed to discuss the grounds of appeal in light of the standards of review set out above.

Discussion Ground 1 The learned trial judge erred by failing to provide sufficient reasons formeaningful appellate review Positions of the Parties [39] The Appellant submits that the learned trial Judge erred when he adopted the oral arguments made by the Crown as hisdecision.

He takes the position that insufficient reasons constitute an error of law, if the reasons are inadequate and prevent appellatereview. [40] The Appellant submits that in determining whether the reasons are adequate and amenable to review with respect tocredibility and reasonable doubt, the question to be answered is ‘do the reasons aptly demonstrate the rationale behind’ the trial judge’sconclusions?

The Appellant submits that it is not good practice for a trial judge to simply adopt the submissions of one side, as there arepotential problems when this occurs. [41] Essentially, the Appellant submits that given the fact that trial judge adopted the submissions of the Crown in their entirety –with the intention that such submissions would constitute the trial court’s decision – the logical inference and conclusion is that the trialjudge has provided no reasons for his decision.

Put differently, the Appellant contends that the adoption of the Crown’s submission bythe trial judge results, in effect, to a situation where no reasons had been provided by the court. [42] In response, the Crown submits that failure to provide reasons is not, of itself, a ground of appeal, citing Sheppard at paras 33,42, and 46.

The Crown further submits that reasons for judgment are sufficient if they adequately demonstrate the rationale behind thetrial judge’s conclusion, citing R v Gagnon, 2006 2006 SCC 17 at paras 12-16, [2006] 1 SCR 621. [43] The Crown argues that meaningful appellate review can take place in this situation, where the issues argued on the voir direwere simple and straightforward.

According to the Crown, its submissions at trial, which the trial judge adopted, were correct in law,clear as well as easy to follow: University of Alberta v Chang, 2012 ABCA 324 at para 12, 539 AR 58. [44] Further, the Crown maintains that the Appellant has not made any clear argument about why the trial judge’s adoption of theCrown’s submissions would constitute an error on the part of the trial judge. It contends that based on the record and the trial decision,meaningful appellate review is available in this circumstance.

Analysis [45] I note that the Supreme Court of Canada in R v REM, 2008 SCC 51, [2008] 3 SCR 3, clarified what will or will not amount tosufficiency of reasons on the part of a trial judge. In R v REM at para 17, the Court stated that: These purposes [of explaining why the decision was made, providing public accountability and permitting effective appellate review]are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrivedat his or her conclusions, in a “watch me think” fashion. It is rather to show why the judge made that decision.

The decision of theOntario Court of Appeal in Morrissey, [ (ON CA), [1995] OJ No 639], predates the decision of this Court establishinga duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge’s reasons is apt. Doherty J.A. inMorrissey, at p. 525, puts it this way: “In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she hasdecided and why he or she made that decision” (emphasis added). What is required is a logical connection between the “what” - theverdict - and the “why” - the basis for the verdict.

The foundations of the judge’s decision must be discernable, when looked at in thecontext of the evidence, the submissions of counsel and the history of how the trial unfolded. [46] In R v Linskyi, 2012 ONSC 7215 at para 28, Campbell J, stated that if the reasons of the trial judge “adequately explain whythe accused was convicted, provide public accountability for the verdict, and permit effective appellate review of the decision,”sufficient reasons will be deemed to have been given by the trial judge in order to meet the requirements of Sheppard. [47] In the case at bar, I am satisfied that the trial judge was an active participant during the entire proceedings, which includedboth the voir dire and the main trial.

This is evidenced by the numerous dialogues that were exchanged in the course of the proceedingsbetween the Trial Court and both Defence and Crown counsel. [48] Examples of these exchanges between the Court and the Defence Counsel are as follows: The Court and Defence Counsel (At page 77) THE COURT: Gamble, I thought we just went through him.

MR. O’NEILL: I’m sorry, I apologize. The first officer -- sorry, Constable -- Sergeant Hartwell, the person before lunch (INDISCERNIBLE) Constable Gamble who is actually still here. We know what Constable Gamble just said and Sergeant Hartwell before lunch. I can give you his evidence. . . . And here there is a dearth of evidence. We have some evidence, a general time frame though it certainly doesn’t move along with dispatch, in my respectful submission, and it’s not consistent with what the Courts have said forthwith provides. The Megahy [i.e.

R v Megahy , 2008 ABCA 297 ] decision from our Court of Appeal, I can -- that’s probably the high or low watermark, whatever way you’re looking at it, sir. That was a situation where the accused was – the issue was just this: was the demand made forthwith. And in Megahy , there was a four-minute delay -- THE COURT: I thought it was four and a half minute time. MR. O’NEILL: It was four. I will bring you to it. It’s 2008 ABCA 207 Alberta Court of Appeal, and this was a case where Mr.

Megahy was stopped at a Checkstop and the police officer had his Approved Screening Device a block and a half away. (And at page 78) THE COURT: Right, and he walked. MR. O’NEILL: Yeah, exactly. So a block and a half away and there was a four-minute delay, and the Court of Appeal said that was not forthwith in the circumstances. And, you know, obviously there’s no exact time frame. Every case is a different thing than what happened.

The Court of Appeal states at page (sic) 18 of the Megahy decision: (as read) Clearly, a police officer must be allowed the time reasonably necessary to decide whether it is appropriate to make a demand for a breath sample under Section 254(2) . This may include questioning to determine whether the driver has alcohol in his system as a result of having taken wine at communion, or having spent a day at a bar.

No laudable purpose is met by continuing to detain the former driver to require him or her to submit to a screening test So every case is (INDISCERNIBLE) and you have to have by your brother Judge -- THE COURT: Well, in Megahy it seems to me that I thought their (INDISCERNIBLE) was it was not necessary to have a -- him not having an Approved Screening Device with him on a Checkstop -- MR. O’NEILL: It was a poor reason and, you know, it was a four-minute delay, but the Court of Appeal said four minutes in those circumstances violates

Section 8. It doesn’t in every case, I concede that, but in Megahy on those facts, those are separate from our facts. The difficulty with our case is we don’t have specifics as to what happened and when. We have got this general, you know, maybe ten- minute time frame. When does Constable Gamble arrive? We don’t know. He can’t tell us, in fairness. We don’t know when Gamble arrives. Hartwell says, well, I know what time I arrived, but I don’t know when Gamble arrives in relation to when I do. And it’s clear he had some period of time with the accused.

Hartwell doesn’t administer any kind of an Approved Screening Device demand. He waits for Constable Gamble to get there.

We don’t know when he gets there and when he gets there, Constable Gamble tells us he doesn’t make -- he starts talking to Constable -- Sergeant Hartwell for two to three, maximum five minutes, before talking -- dealing with the accused, and then he deals with the accused. [ 49 ] Examples of the exchanges that transpired between the Court and the Crown Counsel are as follows: The Court and Crown Counsel (At page 91) THE COURT: So you are saying to me Sergeant Hartwell’s evidence was that he arrived at ten minutes after midnight? MR. O’LEARY: That was his evidence.

THE COURT: And sometime after that, or close to that point, Constable Gamble arrives. We know that Constable Gamble makes the ASD demand at 00:16 hours. MR. O’LEARY: According to his notes. THE COURT: At 16 minutes after 12, according to his watch. But we also know that his information is that he talked possibly two to three minutes with Sergeant Hartwell, which takes us back to 00:13 to a maximum of five minutes, which would take us about to -- MR. O’LEARY: About 11. THE COURT: -- 00:11 hours. MR. O’LEARY: And I -- THE COURT: And you are saying -- MR. O’LEARY: The time line basically fits.

THE COURT: -- it was not unreasonable for the sergeant to turn over the investigation --

MR. O’LEARY: Not at all. THE COURT: -- because of his other duties. MR. O’LEARY: He’s got other duties. He can’t engage in impaired investigations. It’s not uncommon for investigations to be handed off. Certainly the grounds can be transferred, and I would submit that they were, by the time that Constable Gamble formed his grounds based on, again, that same dispatch information, . . . [ 50 ] Clearly, the above excerpts from the transcript of the proceedings of July 15, 2016, demonstrate that the trial judge was not an idle bystander during the proceedings.

In my view, the excerpts confirm that he was alive to the issues, the facts, the applicable law, and the various points which both counsel wished to put forward during the proceedings.

As a result, the trial judge was able to make an informed decision as to the innocence or guilt of the Appellant; and in this case, did so based upon the submissions of the Crown counsel. [ 51 ] From my review of the transcript, I see no difficulty in the trial judge – after listening to both counsel’s able arguments, and with full knowledge of the facts, issues and the law – being in a position where he could come to the conclusion that aligns with the Crown counsel’s submissions; and subsequently, opting to adopt those submissions as his own in determining the innocence or guilt of the Appellant. [ 52 ] I am supported in my conclusion by the decision in R v McKinney , 2008 BCCA 211 , where Levine JA, commenting on a similar fact situation to the case at bar, had this to say at paras 3 and 9: 3 The reasons for judgment of the

summary conviction appeal judge are brief. He found there was abundant evidence that the appellant did not exercise due diligence. He adopted the Crown’s argument with respect to the reasonableness of the notice period. He concluded that the trial judge did not err “as alleged or at all”, and that “her reasons make abundant sense and are founded on the evidence”. 9 Nor are the brief reasons for judgment of the

summary conviction appeal judge inadequate in the circumstances of this case. It is not an error for an appellate court to dismiss an appeal by substantially agreeing with the reasons given by the trial judge, which is what the

summary conviction appeal judge effectively did in this case, and as this Court does from time to time. Nor, in this particular case, was it an error for the

summary conviction appeal judge to adopt the submissions of one of the parties, where they are available on the record for further appellate review . [Emphasis mine]. [ 53 ] The view above was confirmed by the Supreme Court of Canada in Cojocaru v British Columbia Women’s Hospital and Health Centre , 2013 SCC 30 at paras 32-45 , 50, 60, [2013] 2 SCR 357, where the Court observed, inter alia , that (para 50): [A]s a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in her own words her conclusions on the facts and the law.

The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them. As the cases illustrate, the importance of this may vary with the nature of the case. In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial . By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words.

The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal . [Emphasis added]. [ 54 ] As such, while the decision of the trial judge at the conclusion of the trial proper was brief [TT, 108/1-20], I am satisfied that the reasons were succinct from a contextual perspective in that they reflected a clear understanding on the part of the trial judge as to the issues, the evidence before him, as well as the pertinent law they engaged: Cojocaru at para 70 . [ 55 ] I therefore see no error on the part of the trial judge in regards to this ground of appeal.

Ground 2 The learned trial judge erred by failing to consider key evidence before him respecting the Appellant’s ability to fully understand the ASD demand Positions of the Parties [ 56 ] The Appellant submits that he cannot be found guilty of refusing to provide a breath sample if a reasonable doubt exists as to whether he understood what was being asked of him. He notes that the trial judge made a determination that there was no evidence before the trial court that the Appellant did not understand the breath demand.

That conclusion, the Appellant contends, clearly shows a failure by the trial judge to either notice or give proper effect to certain items of evidence that are capable of supporting an inference that the Appellant did not understand the ASD demand. [ 57 ] In support of the Appellant’s position on this ground of appeal, he points to the following: 1. There is uncontradicted evidence that the Appellant had a strong accent. A strong accent is indicative of English not being the speaker’s native tongue, which is precisely the impression formed by Cst. Gamble. [TT, 73/19] 2. Ms.

Lylick described speaking with the Appellant and his friend while they were waiting for a taxi and noted that they “seemed to have just not been very clear with what they were saying...” [TT, 11/25-29]. While one might argue any lack of clarity was due to intoxication, that conclusion becomes less plausible given the lack of any real impaired indicia noted by the two officers who were investigating him for impaired driving. 3. There was a conscious decision by Cst. Gamble to take care in reading the ASD demand to the Appellant slowly. This was done

because, in his own words, “it’s legal writing, so lots of people have a difficult time listening to it.” [TT, 68/41 - 69/2] If lots of people, many of whom would presumably be native-English speakers, have difficulty understanding the ASD demand, it is difficult to understand how simply reading it slower would remedy the problem. 4. In response to the first reading of the demand, the Appellant asked Cst. Gamble to read it again. This is circumstantial evidence that he was having difficulty comprehending what he was being asked. 5. Cst.

Gamble’s plain-language comments to the Appellant after he refused the second demand only touched on his potential jeopardy for refusing and not the specifics of what he was required to do. [TT, 68/30-35]. It is noteworthy that there is no evidence the Appellant was actually presented with an ASD. [TT, 73/21-23]. 6. Cst. Gamble’s assertion that the Appellant understood what he was being told relates only to the plain language explanation of his general jeopardy and not the contents of the breath demand. [TT, 68/30-39] Rather than repeat the demand once more in response, Cst.

Gamble opted to arrest the Applicant for refusal. 7. The very rapid pace of the demand-refusal sequence--of approximately one minute from the initial ASD demand to the arrest for refusal--created a rushed environment in which a non-native speaker might reasonably be expected to grasp less of what is being said to him or her. 8. There is insufficient detail in relation to the witnesses’ interactions with the Appellant to infer that he must have understood the ASD demand by virtue of those interactions.

In other words, there is a difference between being capable of interacting on a basic level versus comprehending with any degree of certainty the formal breath demand read by Cst. Gamble. Bare conclusory statements by witnesses that the Appellant hand no issues with comprehension are of limited use in inferring the mental element of this offence beyond a reasonable doubt. [Excerpted from Appellant’s Counsel’s Brief] [ 58 ] On the other hand, the Crown submits that this ground of appeal relates to findings of fact made by the trial judge.

The decision of the trial judge, however, may not be overturned on review or appeal unless the trial judge made a palpable and overriding error in coming to this conclusion. The Crown maintains that it is clear from the trial judge’s oral decision that he had considered the evidence before him.

In this regard, the Crown further notes that the trial judge specifically commented that the demand had been read to the Appellant once, then observed that the Appellant asked for it to be repeated, following which the demand was re-read, more slowly, before the Appellant indicated that he would not provide a sample. [ 59 ] Accordingly, the Crown submits, given that this appeal ground involves findings of fact on the part of the trial judge, the trial court is owed a high level of deference.

The Crown submits that the trial judge’s decision in this particular case should attract a deferential treatment because the Record demonstrates that the trial judge was alive to the fact situation involving the Appellant’s condition that English is not his first language. Analysis [ 60 ] In determining whether or not there was an error on part of the trial judge relative to the alleged failure to consider key evidence before him as to the Appellant’s ability to fully understand the ASD demand, this Court, sitting on appeal, must resort to the transcript/Record.

The pertinent portion of the transcript requiring review is the trial judge’s decision at the conclusion of the trial proper, which I have referenced earlier (as excerpted from the Trial Transcript at 108/1-20). [ 61 ] My review of the transcript of the proceedings clearly indicates that the trial judge was keenly aware of the likelihood that the Appellant’s first language was not English. In his reasons for judgment, the trial judge stated, “There was no balance difficulties, but there was a strong accident” [TT, 108/4].

I am satisfied that this is a typographical error, and that the word “accident” was meant to be “accent.” [ 62 ] Consequently, I am unable to find any evidence that would lead me to believe that the trial judge was not aware of the fact that the Appellant’s first language was not English. [ 63 ] The Appellant argues that there is a lack of any real impaired indicia noted by the two officers who were investigating the Appellant for impaired driving.

I disagree. [ 64 ] Again, looking at the transcript, and in particular, the wording of the trial judge’s decision, it is without a doubt that the trial judge had a strong appreciation for the evidence before him that would lead to the conclusion that the Appellant was intoxicated due to consumption of alcohol. [ 65 ] In his decision, the trial judge stated, “Constable Gamble’s evidence was that he did note a strong odour of alcohol from the vehicle. The accused was asked to exit the vehicle and come to his vehicle. There [were] no balance difficulties, but there was a strong [accent].

There was an admission of consumption of alcoholic beverages. At that time, Constable Gamble formed a suspicion that the accused had alcohol in his body or blood” [TT, 108/2-6]. The presence of the odour of alcohol surrounding an accused who is being interviewed and investigated for possible impaired driving, together with an admission of alcohol consumption, are both accepted indicia that could be relied upon by the trial judge as evidence to support a finding that Cst.

Gamble’s formation of suspicion was reasonable, and logical, of intoxication on the part of the accused: R v Ishmael , 2012 ABCA 282 at paras 5-6 , 13-14, 536 AR 229; R v Mitchell , 2013 MBCA 44 at para 35 , 298 CCC (3d) 525 (Man CA); R v Drysdale , 2013 SKQB 392 at para 31 , 56 MVR (6th) 184, where the totality of the circumstances known to the Constable – which consisted of the time of night, recent departure from the bar and the respondent’s admission of alcohol consumption – was held sufficient to have established a reasonable basis for the Constable’s suspicion. [ 66 ] I disagree with the Appellant’s submission that if an individual’s first language is not English, s/he will have difficulty

understanding an ASD demand, and that by simply reading it slower would remedy the problem. From my review of the entire transcript, I find no evidence that would lead me to believe that the Appellant had any difficulty in conversing with any of the witnesses who had communicated with him. Furthermore, I believe that it is logical to conclude that it is easier to understand a statement which is read at a slower pace as opposed to a rapid pace. [ 67 ] I further disagree with the Appellant’s contention that the inference from his request to Cst.

Gamble, to read the demand a second time, is that he was having difficulty comprehending what he was being asked. This conclusion is nothing short of conjecture or speculation as it lacks any basis in the evidence before the trial court. In fact, from a review of the transcript, and in particular the testimony of Cst. Gamble, it is clear that Cst. Gamble had formed the conclusion that the Appellant fully understood what was required of him. In this respect, Cst. Gamble testified that, “well, his 1 st response is to ... he asked me to read it again.

He didn’t indicate that he didn’t understand or anything like that. He just asked me to read it again.” [TT, 68/20-21]. [ 68 ] The Appellant argues that it is noteworthy that there is no evidence that the Appellant was ever actually presented with an ASD. I am not aware of any law that requires a peace officer in such a situation to present the accused with an ASD. Nonetheless, if the suggestion here by the Appellant is that there was no evidence that Cst. Gamble had an ASD with him at that point, the statement of Huddart JA, in R v Wilson , 1999 BCCA 110 at paras 12-14 , 41 MVR (3d) 1, becomes apposite.

In that case the British Columbia Court of Appeal unanimously held that “[t]he mere absence of evidence [that] an approved screening device was immediately available is not enough to raise any doubt about the validity of a demand such as was made here and immediately refused.” In other words, the Crown need not prove in every case that an ASD was in the possession of the police or immediately available. [ 69 ] Regarding the Appellant’s contention that Cst.

Gamble owed a duty to the Appellant to ensure that the Appellant not only had a full appreciation of his jeopardy in failing to submit to a breath demand, but in addition, the contents of the breath demand, I do note that the Record indicates that after reading the demand to the Appellant the second time, Cst. Gamble testified to explaining in plain language to the Appellant that he would be charged if he refused to comply, and indicated that the Appellant understood that jeopardy (TT, 68/31-35)]. As such, and based on my review of the transcript, the actions taken by Cst.

Gamble – that consisted of reading the demand twice, slowly the second time at the request of the Appellant, and explaining the demand to him in plain language – were, in my opinion, fully consistent with and met statutory requirements. In the course of the plain language explanation, Cst. Gamble again clarified for the Appellant that if he refused to comply with the demand, he will be charged under the Criminal Code [TT, 69/10-16]. Unsurprisingly, the trial judge accepted the evidence presented by Cst. Gamble during his testimony in this regard.

I find no error with that judicial determination. [ 70 ] The Appellant argues that the timing surrounding the ASD demand created a “rushed” environment in which an individual not having English as the first language might be expected to grasp less of what is being said to him or her. I disagree. Based on the Record and the evidence presented in this case, there is nothing which would lead me to believe that the Appellant, due to any timing constraints, did not have a full understanding and appreciation of what was expected of him.

Accordingly, I conclude that the timing element had no effect on the Appellant’s understanding of the ASD demand. [ 71 ] The Appellant argues that bare conclusory statements made by witnesses that the Appellant had no issues with comprehension are to be considered to be of limited use in inferring the mental element of the offence charged, beyond a reasonable doubt. Once again, I disagree. The police witnesses who had communication with the Appellant and, in particular Cst.

Gamble, presented evidence to the court through their testimony to the effect that the Appellant had a full understanding of his situation and his jeopardy. I fail to see any reason why such evidence cannot be taken into account by the Court when considering whether or not the mental element of the offence has been made out beyond a reasonable doubt. [ 72 ] Accordingly, in regards to this issue, I find no palpable and overriding error on the part of the trial judge.

Ground 3 The learned trial judge erred in finding that the Crown had proven that the Appellant had clearly and unequivocally refused to comply with the breath demand. Positions of the Parties [ 73 ] Lastly, the Appellant submits that as the learned trial judge failed to adequately consider relevant evidence on a material point, the resulting conviction is unreasonable, pursuant to the standard articulated in R v RP , 2012 SCC 22 , [2012] 1 SCR 746.

He contends that when the proper degree of consideration is applied to the evidence, the probative value of the utterance “I will not,” made by the Appellant, gives way to a clear reasonable doubt concerning the intention behind it: (Appellant’s Brief, para 60). [ 74 ] In oral submissions, the Appellant’s counsel admits that this ground of appeal is “to some extent, blended” with the second ground of appeal [Appeal Transcript, 12/29-31; 20/15-17]. [ 75 ] Similarly, the Crown treats the second and third grounds of appeal together, both in the written as well as its oral submissions [Appeal Transcript, 20/1-4].

Analysis [ 76 ] Based on my analysis, as provided above in relation to the second ground of appeal, I do not accept the Appellant’s argument that the learned trial judge failed to adequately consider the relevant evidence dealing with the Appellant’s utterance when he refused to comply with the breath demand . [ 77 ] That being the case, I find no error on the part of the trial judge regarding this ground of appeal.

Disposition [ 78 ] For the reasons expressed above, I conclude that the reasons of the trial judge were sufficient to disclose an intelligible basis for the decision and to permit meaningful appellate review.

It is clear from the transcript that the trial judge was at all times, a meaningful participant in the proceedings, and thereby, gained a full appreciation of the facts, the issues and the applicable law. [ 79 ] Although the trial judge could have, in certain instances, provided a more in depth analysis regarding his consideration of certain evidence on the issue of failing to consent to an ASD demand, this appeal court considers itself able to do so; and therefore, there is no need for a new trial: Sheppard at para 55 ; R v Movchan , 2016 ABQB 317 at para 71 , 39 Alta LR (6th) 347. [ 80 ] The appeal is dismissed.

Heard on the 6 th day of October, 2016. Dated at the City of Edmonton, Alberta this 28 th day of November, 2016. Don J. Manderscheid J.C.Q.B.A. Appearances: Thomas J. O’Leary Alberta Crown Prosecution Service for the Crown Edmond J. O’Neill Beresh Aloneissi for the Appellant