R v Garemew, 2016 ABQB 716

Court of Queen’s Bench of Alberta Citation: R v Garemew, 2016 ABQB 716 Date: 20161216 Docket: 150872943S1 Registry: Calgary Between: Takele Garemew Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Decision of the of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ Appeal from the Conviction by The Honourable Judge T.C. Semenuk Convicted on the 19 th day of January, 2016 ( Docket: 150872943P1) I.

Introduction [ 1 ] The Crown charged Takele Garemew (the “Appellant”) with the following offences under the Criminal Code of Canada , RSC 1985, c C-46 [ Criminal Code ]: COUNT 1: on or about the 19 th day of July, 2015, at or near Calgary, Alberta did, unlawfully operate a motor vehicle while his ability

was to operate a motor vehicle was impaired by alcohol or a drug, contrary to section 253(1) (

a) of the Criminal Code . COUNT 2: on or about the 19th day of July, 2015, at or near Calgary, Alberta did, without reasonable excuse, fail or refuse to comply with a demand made to him by a Peace Officer pursuant to s. 254(3) (a)(

i) of the Criminal Code to provide as soon as practicable samples of his breath as were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, and did thereby committed an offense, contrary to section 254(5) of the Criminal Code . [ 2 ] The Crown proceeded summarily on both charges.

At the conclusion of the trial, the learned Provincial Court judge [“PCJ”] convicted the Appellant on Count 1, and acquitted the Appellant on Count 2, as the Crown did not seek a conviction on that Count. [ 3 ] The Appellant appeals his conviction and sentence on the grounds that the PCJ erred in law by: A. rendering a verdict that was unreasonable and not supported by the evidence; B. reversing the onus of proof; and C. stating that there is no longer any “marked departure” test when determining impairment of the ability to drive. [ 4 ] For the purposes of hearing counsels’ submissions during this appeal, this Court reviewed their written factums, along with the cases attached to their written factums.

This Court also reviewed the January 19, 2016 trial transcript (the “Trial Transcript”). II. Salient Facts [ 5 ] There appears to be no dispute concerning the salient facts. These are reflected in the parties’ respective briefs, and in the Trial Transcript, so this Court will not provide pinpoint locations within the Trial Transcript. [ 6 ] On July 9, 2015, Trudy Hoang resided on [...] Drive in Calgary, Alberta. She was awakened at 3:00 a.m. by the loud sound of a vehicle’s exhaust and popping noises. She went to her window and observed a vehicle on her lawn that she thought was stuck.

It was reversing and going forward. The vehicle reversed into her mother's car. Ms. Hoang called the police, who arrived approximately 4 minutes later. Ms. Hoang observed the vehicle for 2 or 3 minutes. [ 7 ] She drew a diagram that showed the vehicle, a Honda Prelude (the “Prelude”), was 80% on her lawn and 20% on the sidewalk. She never approached the Prelude. [ 8 ] Cst. Marc Comeau was one of the police officers who arrived at the scene in a police vehicle. He was a passenger in the police vehicle.

He observed the Prelude on the sidewalk at a 45-degree angle with the front of the vehicle pointed in a northwestern direction. It appeared to Cst. Comeau that the Prelude was “stuck.” He noted that 2 other vehicles had been struck, being a Honda Civic and a Lexus SUV. The Prelude was running, with the driver inside the Prelude. The Prelude’s lights were on, and the driver was attempting to drive the car off the sidewalk. The Prelude was “high-centered.” From the police vehicle Cst.

Comeau could see by the Prelude’s taillights going on and off that the driver was trying to rock the Prelude off the sidewalk, but he could not get the Prelude off the sidewalk. [ 9 ] The police vehicle’s driver, Cst. Dan Tatla, pulled the police vehicle up to the Prelude with emergency lights activated and hit the police vehicle's air horn. Cst. Comeau could not see any response from the Prelude’s driver, from his vantage point, to Cst. Tatla’s actions. Rather, the Prelude’s driver continued to attempt to drive the Prelude off the sidewalk. Because the Prelude’s driver did not change his behavior, Cst.

Tatla drove his police vehicle parallel to the Prelude. [ 10 ] Cst. Comeau exited the police vehicle, and opened the Prelude’s door. He immediately smelled a strong odour of alcohol from the vehicle. The Appellant was hunched over and swaying slightly from side-to-side. According to Cst. Comeau, the driver was “almost zombie-like” and his hands were up towards the steering wheel. The swaying motion that the Appellant exhibited, based on Cst. Comeau’s personal experience, indicated that the Appellant was under the influence of alcohol. [ 11 ] Cst.

Comeau asked the driver, identified as the Appellant, to show his hands. Instead of showing his hands the Appellant hesitated, then reached into his jacket pocket and handed Cst. Comeau his wallet. At that point, Cst. Comeau formed the opinion that the Appellant was impaired by alcohol. [ 12 ] Cst. Comeau directed the Appellant out of the Prelude so that he could determine whether the smell of alcohol was coming from the Appellant or from the Prelude. Cst. Tatla assisted the Appellant from the Prelude. He noted that the Appellant was “extremely sweaty,” to the point where Cst.

Tatla could see sweat dripping from the Appellant’s forehead. As well, Cst. Tatla could smell liquor coming from the Prelude or from the Appellant. He also noted that the Appellant’s eyes were “bloodshot red,” and really wide-open, like he was in shock. As well, Cst. Tatla noted that there was a case of Heineken beer behind the driver’s seat. This is when he formed the opinion that the Appellant was impaired by alcohol. [ 13 ] Cst. Comeau placed the Appellant under arrest and charged the Appellant with impaired driving. The Appellant was then searched and placed in the back of the police vehicle.

After arresting and handcuffing the Appellant, Cst. Tatla “ Chartered and cautioned” verbatim from a card, which he read to the PCJ. The Appellant said to Cst. Tatla, “yes, I am drunk. I only had 2 beers.” The Appellant also said, “I understand little English. I'm stressed. I have no family. Without my girlfriend, I have nothing.” [ 14 ] Just before Cst. Comeau read the breath demand to the Appellant, the Appellant said, “I had 2 beers, and I drive.” [ 15 ] Cst. Comeau was of the view that the Appellant "absolutely" understood everything that was said to him in English. [ 16 ] Cst.

Comeau made no notes of any problems with the Appellant’s walking to the police vehicle, getting into the police vehicle, or slurring of speech. He noted no swaying on the Appellant’s part while the Appellant was sitting in the police vehicle on the

way to the police station. Cst. Comeau further testified that people who have been involved in a similarly forceful accident are often shaken up by the accident and are nervous at times, and that the sway he noted on first contact with the Appellant was slight. [ 17 ] Cst. Tatla agreed, during cross-examination, that there are many reasons other than impairment for bloodshot eyes, such as cigarette smoke or late nights, that profuse sweating can be caused by nerves which, in and of itself, could be indicative of nervousness. Cst.

Tatla made no notes that the Appellant had any difficulty walking to the police vehicle while handcuffed, or that the Appellant had difficulty speaking or walking. He agreed that it would not be unusual for a person to be sitting in a vehicle looking shocked after an accident of similar severity. [ 18 ] The PCJ relied on the following indicia of impairment: • the Appellant’s "egregious driving" • the Prelude was on Ms.

Hoang’s lawn • the Appellant continued to “rev the engine,” rocking the vehicle forwards and backwards, not appreciating that the vehicle was high-centred on the sidewalk and could not be moved • the Appellant did not notice when the officers arrived on the scene, and that Cst Tatla sounded the air horn • the smell of alcohol coming from the Prelude / Appellant • failing to follow directions by producing his wallet to Cst Comeau when asked to show his hands • slight swaying in his seat • looking “like a zombie” • bloodshot eyes • sweating from his forehead [ 19 ] Based on these factors, and the totality of the evidence, the PCJ found that the Appellant’s ability to operate a motor vehicle was impaired by alcohol.

III. Discussion [ 20 ] This Court will outline the standard of review that it must apply when considering the grounds of appeal that the Appellant argues. It will then review each of the grounds. A. Standard of Review [ 21 ] This Court may allow an appeal of a

summary conviction for the reasons set out in Criminal Code s 686, which by Criminal Code s 822(1), are made applicable to

summary conviction appeals. Those provisions provide as follows: 686.

(1) On the hearing of an appeal against a conviction …, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby 822.

(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. [ 22 ] By Criminal Code s 813, the Appellant is permitted to appeal his conviction and sentence to this Court.

[23] When a party alleges that a judgment is unreasonable and cannot be supported by the evidence, the standard of review that theappellate court applies is whether a properly-instructed jury, acting reasonably, could have reached such a verdict. If the party allegesthat the trial judge misapprehended evidence, the appellate court must examine whether the trial judge was “mistaken as to the substanceof material parts of the evidence and those errors play an essential

part in the reasoning process”: R v Lohrer, 2004 SCC 80 at para 1,[2004] 3 SCR 732. [24] The appellate court could allow an appeal where the trial judge has made a palpable and overriding error, but it must notsubstitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility: R v S (PL), (SCC), [1991] 1 SCR 909, 64 CCC (3d) 193 at 198. [25] The standard of review depends on whether this Court is dealing with the facts, the law or mixed fact and law. A question offact is to be reviewed on a standard of palpable and overriding error: Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235[Housen] at paras 10 and 25. A question of law is to be reviewed on a standard of correctness: Housen at para 8-9. A question of mixedfact and law lies along a spectrum. The general rule is where the issue on appeal involves the trial judge's

interpretation of the evidenceas a whole, it should not be overturned absent palpable and overriding error: Housen at paras 36. A question of mixed fact and law withan extricable error in principle can be characterized as an error of law. An extricable error in principle is one that "can be attributed to theapplication of an incorrect standard, a failure to consider a required element of a legal test, or a similar error in principle": ibid. B.

Unreasonable Verdict Based on Unsupported Evidence [26] In R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527 [Shepherd, cited to SCR], the Supreme Court of Canada said that it iscrucial that the appellate court distinguish between factual findings and the “ultimate ruling” based on those facts, when it said thefollowing: In our view, the

summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and hisultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge’s factualfindings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. Shepherd at para 20. [27] The PCJ in this case at bar is entitled to deference concerning the facts as he found them. That, however, does not end thisCourt’s examination of the issue. It must determine whether those facts support the verdict.

The latter examination is based on a standardof correctness. [28] In R v Yebes, (SCC), [1987] 2 SCR 168 at 185, McIntyre J, for the court said that the test for determiningwhether a verdict is unreasonable or that it could not be supported by the evidence is “whether the verdict is one that a properlyinstructed jury acting judicially, could reasonably have rendered.” In R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381,143 CCC (3d) 1, 32CR (5th) 1 [Biniaris, cited to SCR], Arbour J for the court said that the test outlined in Yebes, although framed in the context of a jurytrial, was applicable, as well to a judge alone trial.

She said the following: The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of a singlejudge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able toidentify a flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, andjustify the reversal. ... [T]he court of appeal often can and should identify the defects in the analysis that led the trier of fact to anunreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside a verdict as unreasonable when thereasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdict inconsistent with thefactual conclusions reached. These discernable defects are themselves sometimes akin to a separate error of law, and therefore easilysustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law.

Biniaris at para 37. [29] Although the result must always be reasonable, Arbour J earlier in her reasons in Biniaris said that the findings of fact asdetermined by triers of fact are entitled to deference, when she said the following: Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to bedrawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is madeout, overall, beyond a reasonable doubt.

Any judicial system must tolerate reasonable differences of opinion on factual issues.Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction.Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority andfinality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law,in which case it must be overturned.

Biniaris at para 24. [30] In this case, the Appellant argues that when one looks at the totality of the evidence, and the evidence from which the PCJinferred that the Appellant was impaired, he rebutted that evidence to show that he was not impaired, or that his impairment wasunrelated to the consumption of alcohol. He cites R v Andrews, 1996 ABCA 23, 104 CCC (3d) 392, 178 AR 182 [Andrews, cited toCCC], in which Conrad JA said the following: ...

The question is simply whether the totality of the accused's conduct and condition can lead to a conclusion other than that his or herability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not bemet. Common sense dictates that the greater the departure from the norm, the greater the indication that the person's ability to drive isimpaired. ...

Andrews at 404-05. [31] The Appellant gives numerous alternate theories for the various facts the PCJ found to show his impaired state, and thecircumstances in which he found himself. This is similar to the issue with which the courts were faced in R v Pelech, 2011 ABQB 88, 47Alta LR (5th) 351, 507 AR 389 [Pelech QB], rev’d 2012 ABCA 134, 522 AR 235, 63 Alta LR (5th) 53 [Pelech CA]. In that case, theprovincial court convicted the accused of impaired driving.

On appeal to the Court of Queen’s Bench, he argued that the ProvincialCourt judge erred in drawing an adverse inference of impairment when other plausible and rational explanations were clearly availableand supported by evidence that the trial judge had not taken into account. The

summary conviction appeal judge made the followingobservations about alternate sources of impairment: . .. negligence and oversight are also possible causes of impairment. We can take judicial notice of other factors, frequently alluded to inthe general media or sometimes themselves the subject of legislation, factors such as fatigue, distraction by passengers, distraction by useof cell phones or texting devices, are also potential causes of impairment. Where the evidence warrants, a judge must consider whetherimpairment by alcohol is the only rational inference that can be drawn from the evidence.

Pelech QB at para 9. [32] The Alberta Court of Appeal allowed the Crown’s appeal and said the following: With respect, there was no evidence to warrant consideration of any of these other sources of impairment. Specifically, no alternativesource of impairment was ever suggested at trial, let alone offered by the respondent, who did not testify. Thus, these other potentialsources of impairment, on this record, would be matters of pure speculation.

Pelech CA at para 16. [33] In the case at bar, the PCJ had the ability to find that the Appellant was impaired by alcohol based on the evidence, as hefound it, and he gave his reasons for his so finding. The evidence, which he found, supported that finding, so his verdict was notunreasonable. The theories, or alternate explanations, that the Appellant argued before this Court could be plausible, but as the Court ofAppeal said, they are “pure speculation.” C. Reversal of the Onus of Proof [34] This issue is related to the first.

The Appellant argues that the PCJ was placing the burden of proof on the Appellant to offeran explanation for the factors which contributed to the PCJ’s finding of impairment. The PCJ said the following: There is no explanation for that driving, other than that the accused's ability to operate a motor vehicle was, in fact, impaired by alcohol.And I would be speculating -- absent any explanation by the accused, for instance -- it was in the early morning hours, one of his fronttires, or a rear tire blew, or something happened in the vehicle that caused the vehicle to swerve off the roadway and go onto the lawn.

Idon't have any of that. All I have got is I have got an unexplained accident. Trial Transcript, p 60, ll 36-40, p 61, l 1 [emphasis added]. [35] It is interesting to note that the PCJ made these comments during argument, and not during his ultimate ruling.

However, inhis ultimate ruling, the PCJ referred to the “unexplained motor vehicle accident” and the unexplained production of his wallet when theAppellant was asked to show his hands: Trial Transcript, p 65, l 9, ll 23-24. [36] The Appellant argues that the Crown must prove all elements of the offence, and that in determining guilt or innocence, thecourt must consider the totality of the evidence. This Court does not disagree with this proposition. How could it? That is the foundationupon which Canadian criminal law is built.

However, once the Crown has satisfied its onus to prove beyond a reasonable doubt that theAppellant’s ability to operate a motor vehicle was impaired by alcohol, that would be the end of the Crown’s burden. It would be up tothe Appellant at that stage to challenge the Crown’s evidence. This is not a shifting of the onus. The Crown has met its onus. If theAppellant chooses not to present any evidence, that ends the matter. The PCJ can consider what is before him, based on the evidence thatthe Crown has presented. D.

The “Marked Departure” Test [37] This ground of appeal arises from the PCJ’s comment, “I do not agree with any suggestion that there is still some kind ofmarked departure test out there”: Trial Transcript, p 65, ll 7-8.

The Appellant argues that a “marked departure” test is “alive and well inAlberta.” The Crown argues that such a test is bereft of life. [38] This “debate” stems from a decision of the Alberta District Court in R v McKenzie (1955), (AB KB), 111CCC 317 at 319, 20 CR 412 (Alta DC) [McKenzie], where Sissons CJDC said the following: If a combination of several tests and observations shows a marked departure from what is usually considered as the normal, it seems areasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability todrive is impaired.

I do not think that such a finding should be made on a slight variation from the normal. [39] Thereafter, in R v Smith (1992), 1992 ABCA 159 , 73 CCC (3d) 285, 131 AR 59 (CA) [Smith, cited to CCC], theAlberta Court of Appeal said the following: McKenzie seems to have been generally accepted. The courts that have employed it have found it to be a useful adjudicative tool that

supplies some consistency to the trial of these cases and the assorted facts brought before them. Its value lies in its use as a generalthreshold of proof that counterbalances the generosities (or pruderies) of the many judges and juries who have to decide the issue. In ourview the test has proved useful, realistic, and after 37 years, is now safe, we think, from incursion. Smith at 286-87. [40] It went on to say the following: ... But McKenzie has maintained its force, certainly in Alberta.

If it is wrong and Parliament prefers to criminally proscribe anyimpairment, however slight, accompanying the operation of a motor vehicle, it is free to do so. This seems unlikely where provincialgovernments concurrently sell intoxicants and driver's licences (frequently from the same building), and the federal government declinesto criminalize the operation of motor vehicles by persons who have consumed alcohol but in amounts less than 80 mg of alcohol in 100ml of blood. Smith at 288. [41] Other courts of appeal across Canada criticized the approach that the court took in McKenzie. See e.g.

R v Bruhjell(September 18, 1986), Vancouver, CA00416 (BCCA); R v Campbell (1991), (PE SCAD), 26 MVR (2d) 319, 87 Nfld& PEIR 269 (PEI CA); R v Stellato (1993), (ON CA), 78 CCC (3d) 380, 12 OR (3d) 90 (CA) [Stellato CA, cited toCCC], aff’d Stellato v R, (SCC), [1994] 2 SCR 478, 90 CCC (3d) 160; and R c Aubé (1993), (QCCA), 2 MVR (3d) 127, 85 CCC (3d) 158 (CA Qué). Labrosse JA for the Ontario Court of Appeal examined the history of this issue andsaid the following: ... [T]he Criminal Code does not prescribe any special test for determining impairment.

In the words of Mitchell J.A. [in Campbell],impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less thanthat required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law. In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out.

Stellato CA at 384. [42] Labrosse JA agreed with the other courts that held that it is not necessary for the Crown to establish a marked degree ofimpairment of the accused person’s ability to drive. Instead, all it need prove beyond a reasonable doubt is any impairment, “rangingfrom slight to great,” of the accused person’s ability to drive. [43] This debate was finally laid to rest in Alberta, with the decision in Andrews, where Conrad JA explained how McKenzie andStellato exist harmoniously. She said the following: In my view, Stellato and McKenzie are compatible cases.

Stellato speaks to the degree of impairment of the ability to drive necessary tosustain a conviction; McKenzie speaks to the manner of proof of that impairment. Stellato supports the proposition that a marked degreeof impairment of ability to drive is not required, whereas McKenzie says that an inference of any impairment of the ability to drive canreasonably be drawn from conduct that exhibits a marked departure from the norm. It does not say that it ought not to be drawn if it is nota marked degree. It only proscribes that inference if there is a slight variation from the normal. It speaks to degree of proof.

In otherwords, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight ormarked impairment) is proven beyond a reasonable doubt. Stellato does not overrule McKenzie, it says that there is no rule of lawrequiring that in addition to finding the existence of an impairment of ability to drive, there must also be a marked departure of conduct. Andrews at 403. [44] The Appellant in the case at bar argues that because Conrad JA says that Stellato CA does not overrule McKenzie, McKenzieis still good law in Alberta.

He provides quotations from Andrews that are taken completely out of context. The ratio decedendi ofAndrews was clearly articulated by Conrad JA in the immediately preceding para, i.e. Stellato CA speaks to the degree of impairment;McKenzie speaks to the manner of proof if the court intends to draw an inference of impairment.

McKenzie does not establish a rule oflaw: Andrews at 402. [45] If one were to get into a semantic debate, it is arguable that the PCJ might have erred in saying that there is no “markeddeparture test out there.” There is such a “test” out there, but it is not used to determine whether an accused person has committed anoffence under Criminal Code s 253(a). It is used if the trial judge seeks to infer that the accused person’s ability to drive is impaired. [46] The PCJ, however, did not have to use a “marked departure test” to convict the Appellant.

He had other facts before him and,as previously discussed, those facts supported his finding of guilt. IV. Conclusion [47] As a result of the foregoing, this Court dismisses the Appellant’s appeal. Heard on the 8th day of December, 2016.

Dated at the City of Calgary, Alberta this 16 th day of December, 2016. K.D. Yamauchi J.C.Q.B.A. Appearances: C John Hooker for the Appellant Rosalind Greenwood Alberta Crown Prosecution Service for the Respondent