R. v. Hicks, 2018 NLSC 171

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hicks , 2018 NLSC 171 Date : August 21, 2018 Docket : 201706G0099 JONATHAN HICKS v. HER MAJESTY THE QUEEN Before: Justice Sandra R. Chaytor On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File #0816A00228 dated the 17th day of June, 2017. Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: March 15, 2018

Summary: Jonathan Hicks appealed his conviction for operating a motor vehicle with a blood alcohol content exceeding 80 mg of alcohol per 100 ml of blood. Mr. Hicks had not been observed driving the vehicle, however on appeal, he did not contest that he was the driver. The trial judge found that the Crown had proven the time of driving to be within two hours from the time the first blood sample was taken so as to permit the Crown to rely upon the presumption pursuant to section 258(1) (c)(ii) of the Criminal Code of Canada .

The main focus of the appeal was whether the trial judge had erred in finding that the Crown had met its burden to prove beyond a reasonable doubt that the first breath sample was obtained within two hours of driving given that the timeline was established by reliance on estimates of time. Held:

Appeal dismissed. There was evidence to support the findings of fact made and the factual inferences drawn by the trial judge withrespect to the timeline. The Court could not conclude that these findings were clearly wrong or unsupported by the evidence or otherwiseunreasonable. Although the trial judge’s reasons were brief, they were adequate to show the trial judge was well aware of the key issuesin the case and were otherwise sufficient to allow meaningful appellate review. Appearances: Alison J. Manning Appearing on behalf of the Crown Gregory J.

French Appearing on behalf of Jonathan Hicks Authorities Cited: CASES CONSIDERED: R. v. Sinclair, 2011 SCC 40 , [2011] 3 S.C.R. 3, S.C.J. No. 40; Furlong Estate v. Newfoundland Light& Power Co., |2005 NLCA 25; Green v. Green, 2005 NLCA 29; R. v. Manning, 2014 NLTD(G) 122; R. v. Clark, 2005 SCC 2 ,[2005] 1 S.C.R. 6, S.C.C. 2; R. v. Lam, 2011 ONCJ 66; R. v. White, (NL SC), [1993] N.J. No. 88, 106 Nfld. &P.E.I.R. 84 (Nfld. S.C.T.D.); R. v. Vokurka, 2014 SCC 22 , [2014] 1 S.C.R. 498, S.C.C. 22; R. v. Burns, (SCC), [1994] 1 S.C.R. 656, S.C.J. No. 30; R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869, S.C.J.

No. 30; R. v. R.E.M.,[2008] 3 S.C.R., S.C.J. No. 52; R. v. Vuradin, 2013 SCC 38 , [2013] 2 S.C.R. 639, S.C.J. No. 38; R. v. Vickerson (2005), (ON CA), O.J. No. 2798, 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Gostick (1999), (ON CA), 121 O.A.C.355, 137 C.C.C. (3d) 53 (Ont. C.A.); R. v. Quercia (1990), 60 C.C.C. (3d) 53 (Ont. C.A.). STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] The Appellant was charged with two offences: one count of impaired operation of a motor vehicle contrary to section253(1)(

a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code), and one count of operation of a motor vehicle with a bloodalcohol content exceeding 80 mg. of alcohol per 100 ml. of blood contrary to section 253(1)(

b) of the Code. The charges arose from anincident occurring on October 8, 2016, at the Town of Bay L’Argent, Newfoundland and Labrador. At trial, the Appellant was acquittedof the charge under section 253(1)(

a) but convicted under section 253(1)(b). It is that conviction that is the subject of this appeal. [2] On appeal, the Appellant did not contest that he was the operator of the vehicle in question. He was not observed driving bythe police. Rather his vehicle was located by RCMP officers, Cst. Greening and Cst. Esculier at 3:36 p.m. parked in front of aconvenience store and he was found inside the store.

The officers had received a complaint of a suspected impaired driver operating avehicle of the same description as the Appellant’s and while searching for the vehicle they had driven past the store shortly before 3:36p.m. They testified that the vehicle had not been at the store when they first passed by. The officers had proceeded to a local wharfapproximately a minute’s drive past the store where they conversed with a gentleman who advised that the vehicle they were seekinghad left the area.

The officers proceeded to drive back towards the store and observed the Appellant’s vehicle parked in front of thestore. [3] The officers testified that they had passed by the store less than 10 minutes earlier. The shopkeeper testified that theAppellant had entered the store less than 5 minutes prior to the police arriving. The trial judge concluded that the Appellant had to havebeen driving at, or after, 3:26 p.m. The first breath sample was taken at 5:24 p.m.

Therefore, the trial judge concluded that the firstsample was taken within the requisite two hour time frame from the time of driving. [4] The crux of this appeal is whether the trial judge erred in finding the Crown had proven beyond a reasonable doubt the two-hour timeline so as to rely upon the presumptive accuracy of the breathalyzer readings pursuant to section 258(1)(c)(ii) of the Code. THE LAW [5] Section 258(1)(c)(ii) states that:

[W]here samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if [...] each samplewas taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample,not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, [...]evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed, was [...] the lowest of theconcentrations determined by the analyses. [6] This is a

summary conviction appeal brought pursuant to

section 813 of the Code. Section 822(1) of the Code states thatwhere an appeal is taken under

section 813, sections 683-689 of the Code apply with such modifications as the circumstances require. [7] Section 686(1) of the Code sets out the powers of an appellate court in hearing an appeal of this nature. The Court: (

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, wasproperly 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 infavour 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 appellantwas convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; [8] In R. v.

Sinclair, 2011 SCC 40 , [2011] 3 S.C.R. 3, S.C.J. No. 40, the Supreme Court of Canada clarified the inquiryto be made by an appellate court in reviewing a judge-alone verdict for reasonableness or whether the verdict can be supported on theevidence. At paragraph 84, Charron, J., writing for the majority, stated: In my view, the s. 686(1)(a)(

i) inquiry in judge-alone trial should proceed as follows: (

a) The reviewing court should first apply the test in Yebes/Biniaris. The question is whether the verdict is one that a properly instructedjury, acting judicially, could reasonably have rendered on the evidence as a whole. If not, then the test is met, the inquiry is over, and anacquittal is entered. (

b) If the verdict is available on the evidence, the reviewing court may go on to assess the reasonableness of the verdict under theBeaudry test by scrutinizing the actual findings of fact and inferences made by the trial judge. As stated earlier, an unreasonable verdictof the kind identified in Beaudry will be exceedingly rare. It is therefore not necessary to conduct this assessment in every case. Unlessthe issue is specifically raised, or the circumstances clearly call for this further inquiry, the impact of errors in the reasoning process thatled to the verdict falls to be assessed under either s. 686(1)(a)(ii) (errors of law) or s. 686(1)(a)(iii) (miscarriage of justice). (

c) The Beaudry test may apply in exceptional cases where the reasoning process of the trial judge is so irrational, or so at odds with theevidence, that it vitiates the verdict -- even though that verdict is available on the evidence as a whole. In these rare cases, an appellatecourt will be justified in concluding that the verdict itself is unreasonable. What precise kind of errors would justify this conclusion is aquestion better left to be decided in cases where the issue will arise. If the reviewing court so concludes, a new trial is ordered, as the

court will have already determined under the Yebes/Biniaris test that the verdict is otherwise available on the evidence. GROUNDS OF APPEAL [9] In his factum, the Appellant set out the following four grounds of appeal: 1. Did the trial judge err in fact and law by finding that the offence was proven beyond a reasonable doubt on the basis of theevidence presented? 2. Did the trial judge err in law in the weighing of evidence and assessment of the standard of proof beyond a reasonable doubt? 3.

Did the trial judge err in law by failing to provide sufficient or adequate reasons for weighing evidence and/or assessing thestandard of proof? 4. Did the trial judge err in law by failing to provide sufficient or adequate analysis of witness testimony as relates to the Crown’sburden of proof? [10] Counsel for the Appellant, on argument, acknowledged that there is considerable overlap in the grounds articulated and did notdifferentiate between the grounds in setting forth his argument.

It was acknowledged that grounds 3 and 4 speak to the issue of thesufficiency of reasons by the trial judge and are dealt with collectively on that basis. ANALYSIS Standard of Review [11] In Furlong Estate v. Newfoundland Light & Power Co., 2005 NLCA 25 and Green v. Green, 2005 NLCA 29 the Court ofAppeal, articulated the standards of review that apply on appeal. For questions of law, the standard is correctness.

For questions of fact,the standard is palpable and overriding error and for questions of mixed fact and law and inferences of fact, generally the standard ispalpable and overriding error although this can vary depending on the inferences or the mixture of fact and law. [12] Correctness is a lower standard than palpable and overriding error. It permits appellate judges to substitute their own findingsfor those of the trial judge if an error of law has occurred. As stated by Handrigan, J. in R. v.

Manning, 2014 NLTD(G) 122, the searchfor "palpable and overriding error" in a trial judge's reasoning raises the bar considerably. Appeal courts are required to show significantdeference to trial judges with respect to findings of fact and factual inferences.

Issue 1: Did the trial judge err in fact and law by finding that the offence was proven beyond a reasonable doubt on the basis of theevidence presented? [13] Pursuant to section 258(1)(c)(ii) of the Code, the results of an analysis of a breath sample taken as soon as practicable after thetime the offence is alleged to have been committed, and in the case of the first sample, not later than two hours after that time, isconclusive proof of the concentration of alcohol in the accused’s blood both at the time the analyses were made and at the time ofdriving. [14] If the first sample is taken outside the two-hour window, the Crown is required to tender expert evidence to extrapolate theblood alcohol concentration at the time of driving.

The Crown did not tender any expert evidence of extrapolation at trial and insteadrelied on section 258(1)(ii) and the two-hour presumption. [15] The officers testified that they had passed by the store less than 10 minutes earlier. They did not make contemporaneous notesto record the time of first passing the shop or the time of their attendance at the wharf and discussion with the gentleman there.

Their firstcontemporaneous notes recording times with respect to the incident occur at 3:36 p.m. when the Appellant and his vehicle were located. [16] The Appellant argues that the trial judge erred in finding that the two-hour timeline required by section 258(1)(c)(ii) had beenproven by the Crown beyond a reasonable doubt given that the evidence relied upon to establish the relevant times were estimates. Thisis of particular significance in this case where the difference between the time of driving found by the trial judge and the time of the firstbreath sample was 1 hour and 58 minutes.

The trial judge’s conclusion that the last time of driving was no later than 3:26 p.m. is aninference of fact and as such is reviewable on a standard of palpable and overriding error. [17] In R. v.

Clark, 2005 SCC 2 , [2005] 1 S.C.R. 6, S.C.C. 2, at paragraph 9, Fish, J. reiterated the governing principlesregarding the deference that appellate courts are expected to afford to trial judges with respect to factual inferences: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the Trial Judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this establishednorm. [18] The Appellant contends that as the Crown chose to rely upon the presumption, it had to meet the requirements of thepresumption beyond a reasonable doubt and did not do so because the calculation of time was based upon estimates. Given that thetimeline was so tight (within two minutes of the two-hour time limit), the Appellant argues this was sufficient to raise a reasonable doubt. [19] The Appellant further points to a response given by Cst.

Esculier to a question at trial and argues that his response should alsohave given rise to a reasonable doubt. Cst. Esculier testified that if he had turned his mind to the timeline, he would have requested anextrapolation. The Appellant submits that this is evidence that the officer expressed concern about whether or not the timeline had beenmet and therefore this should have created reasonable doubt as to the certainty of the time.

[ 20 ] The Crown argues that Cst. Esculier’s comment was not an admission that the two-hour time frame had not been met or, that it was in doubt, but an acknowledgement that when timelines are close in such matters, the police will often ask for an extrapolation. [ 21 ] The trial judge did not specifically mention this particular statement by Cst. Esculier. He did reference at paragraph 18 of the decision, however, another part of Cst. Esculier’s evidence and wrote that Cst.

Esculier “made it clear when he testified that he was aware of the two-hour limit, and being a qualified breathalyzer operator himself, he knew that if the first sample was taken outside the two hours, he would have to get an expert witness to extrapolate the readings.” [ 22 ] There is no question that the timeline was close in this case. As an appellate court I must consider the entire evidence that was before the Court including the record. The trial judge would have heard Cst.

Esculier’s impugned comment in the context of the entirety of his evidence including the aspect of his evidence referenced in the decision. [ 23 ] Furthermore, Cst. Esculier’s evidence was not the only evidence that the trial judge had to rely upon in making his finding of fact with respect to timing of driving. Cst. Greening and the shopkeeper also provided evidence that supports the finding that the time of driving was at, or after, 3:26 p.m. Cst.

Greening testified that the time of driving by the store would have been “five minutes – less than ten minutes for sure” before they arrived at the store at 3:36 p.m. (transcript page 10). The shopkeeper testified that the Appellant had been in the store less than five minutes prior to the police arriving and that his vehicle had not been parked in front of her store a couple of seconds prior to him entering the store (transcript page 66). [ 24 ] The trial judge had before him evidence of three witnesses from which he was able to draw a factual inference of time of driving.

The evidence of all 3 witnesses was consistent in that it would put the time of driving under 10 minutes prior to the police arriving at the store. The 2 police officers testified that they had driven past the store less than 10 minutes prior and the vehicle was not parked there. They independently recorded based on their respective watches the time of arrival at the store as being 3:36 p.m. This is the totality of the evidence on this point and it supports the trial judge’s finding that the Appellant drove the vehicle, at or after, 3:26 pm. The first breath sample was taken at 5:24 p.m.

Although the timing is tight, the evidence supports the trial judge’s finding that it was within the two-hour requisite time period. [ 25 ] This is not a situation where the trial judge was faced with conflicting estimates of time. Rather he had three witnesses who gave evidence consistent with the Appellant having driven the vehicle at, or after, 3:26 p.m. [ 26 ] The Appellant emphasized that the time between the first breath sample and the last act of driving was two minutes and therefore an estimate of time could be off by two minutes.

It is noted, however, that the Trial judge found the time of driving at or after 3:26 p.m. The two-minute mark gave the Appellant the benefit of the doubt. It is the shortest amount of time between the last act of driving and the first breath test. [ 27 ] The Appellant also raised the issue that there was inconsistency in the instruments utilized for the recording of various times and that those instruments were not synchronized. Times were recorded variably using the officers’ watches while other times were noted according to dispatch or the police system time.

The times of 3:36 p.m. and 5:24 p.m., however, were both recorded by Cst. Esculier’s watch. Cst. Greening and Cst. Esculier recorded from their watches the time of 3:36 p.m. as the time of finding the Appellant at the store. This was not an estimate. It is also evidence that both the officers’ watches were recording the same time. [ 28 ] Cst. Greening was questioned on this at page 31 of the transcript of trial: Q. The time of 15:36 in your notes, how was that determined? A. By my watch. At page 100 of the transcript, Cst. Esculier was asked the same question: Q. And how did you determine the time of 15:36? A.

Same thing, with the watch. [ 29 ] The trial judge had evidence before him from both officers which was consistent as to the time that the Appellant and his vehicle were located. This is the time from which the trial judge calculates the time of driving. Both officers testified that they had passed the store less than 10 minutes prior to that time. The trial judge therefore made an inference of fact based on the evidence that the time of driving would have been at, or after, 3:26 p.m. [ 30 ] The time of the first breath sample was 5:24 p.m. This too was recorded by Cst. Esculier’s watch.

At page 88 of the transcript, the following exchange is recorded from Cst. Esculier’s evidence: Q. All right. And 5:24 p.m., where did that time come from? A. The time was from my watch. Its procedure that the qualified technician to ask for the lead investigator for their actual time on their watch to input on the certificate. Therefore, the fact that other times recorded earlier in the day may have been based upon system time, is not relevant. [ 31 ] The Appellant relies upon the case R. v.

Lam 2011 ONCJ 66 , in which the accused was acquitted of operating a vehicle with a blood alcohol concentration exceeding 80 following a motor vehicle accident. The Court found that the evidence did not sufficiently establish that the time of driving was within two hours of the first breath sample and therefore the Crown could not rely upon the presumption pursuant to

section 258 of the Code . In that case, there was evidence from only one witness (the driver of the other vehicle) as to the estimate of the time of driving. Furthermore, the time estimate given by that witness was based on a clock in a barbershop that he had left shortly prior to the accident and the Court noted that the barbershop clock time may not have been the same as that of the breathalyzer machine.

[32] The evidence available in R. v. Lam to establish the time of driving was much weaker than that before the trial judge in thiscase. In this case, the judge had the evidence of three witnesses which was consistent with respect to the estimate of the time of driving.Furthermore, Cst. Esculier’s watch was used to establish the timing of the breath sample and was also one of the devices that recordedthe time of 3:36 p.m. as the time the Appellant and his vehicle were located at the convenience store.

It was from the recorded time of3:36 p.m. that the trial judge then used the evidence of the three witnesses to determine the time of driving. As such, I find R. v. Lamdistinguishable on the facts. [33] R. v. White, (NL SC), [1993] N.J. No. 88, 106 Nfld. & P.E.I.R. 84 (Nfld. S.C.T.D.) concerned an appeal ofa conviction for breach of section 253(1)(

b) of the Code. In that case there was one witness who testified as to the timing of driving.There were issues with respect to that witness’s credibility. Furthermore, his evidence involved approximations as to timing and he wasnot wearing a watch at the time. Orsborn, J. found that despite the “clearly unsatisfactory evidence” of the witness, there was a degree ofconsistency to his assertion on the timing of driving and therefore he could not conclude that the trial judge’s finding of driving, withinthe two hours, was unreasonable or could not be supported.

In so concluding, Orsborn, J. noted the very great deference that should begiven to a trial judge in the assessment of the evidence of witnesses. [34] Where the inferences of the trial judge are reasonably supported by the evidence, the Supreme Court of Canada has made itclear that it is not for me, sitting as an appellate court judge, to reweigh the evidence and substitute my own views of it (R. v. Vokurka,2014 SCC 22 , [2014] 1 S.C.R. 498, S.C.C. 22). When the entire record is considered, I conclude that the findings of fact inrelation to the timeline are supportable by the evidence.

I cannot conclude that the trial judge made a palpable and overriding error inrelation to his factual inference with respect to the time of driving. Therefore, the trial judge’s conclusion as to the timing of driving issupported by the evidence and is reasonable. Therefore, this ground of appeal fails.

Issue 2: Did the trial judge err in law in the weighing of evidence and assessment of the standard of proof beyond a reasonable doubt? [35] In putting forward this ground of appeal, the Appellant submitted that the trial judge’s decision was silent as to the credibilityand reliability of the witnesses and again raised the issue of the estimations of the time given by the police officers and the “uncertainty”in the shopkeeper’s evidence. [36] The Appellant submitted that reasonable doubt arose in the fact that the officers had estimated the time that they had passed bythe store and the absence of the trial judge’s comments on this suggests that he did not appreciate the implications of the use ofestimations of time on the Crown’s burden of proof.

It is noted, however, that the trial judge’s use of phrasing such as the police hadpassed by the shop “less than ten minutes earlier”, demonstrates that the trial judge was cognizant of the fact that the officers wereestimating the time.

Their evidence was consistent on this and it is clear the trial judge accepted their evidence that it was less than 10minutes prior to 3:36 p.m. that the truck had to have been driven by the Appellant. [37] With respect to the shopkeeper’s evidence, although she was mistaken as to the time of day that the incident occurred, therewas no contradiction in her evidence as to the amount of time that the Appellant was in the store prior to the police arriving.

She wasalerted to the Appellant entering the store by the noise of the door opening and she could see the truck parked outside the window thatshe looked out as she served customers. [38] This was a relatively straight-forward and uncomplicated trial. There was no novel question of law or contradictory evidence. Itis not a situation where the trial judge heard conflicting time estimates, for example, where one estimate put the time period beyond thetwo-hour mark and the trial judge had rejected that evidence without explanation.

Rather, this is a case in which all three witnessesprovided consistent evidence as to the relevant time frame, all of which put the time of driving within the two-hour mark. [39] Upon review of the totality of the record, I could find no contradictions or issues with the reliability of the witnesses that wouldsuggest that the trial judge failed to carry out an appropriate weighing of the evidence and assessment of the standard of proof beyond areasonable doubt and thereby committed an error of law. This ground of appeal therefore fails.

Issue 3: The Sufficiency of Reasons Did the trial judge err in law by failing to provide sufficient or adequate reasons for weighing evidence and/or assessing the standard ofproof? Did the trial judge err in law by failing to provide sufficient or adequate analysis of witness testimony as relates to the Crown’s burden ofproof? [40] The question of the sufficiency of a trial judge’s reasons is a question of law and is reviewable on a standard of correctness. [41] In R. v. Burns, (SCC), [1994] 1 S.C.R. 656, S.C.J.

No. 30 at page 664, McLaughlin, J. (as she then was)stated as follows in dealing with the sufficiency of reasons given by trial judges: The Court of Appeal's main concern was not that there was insufficient evidence to support the verdicts of guilty, nor that those verdictswere unreasonable, but that the trial judge's reasons failed to indicate that he had considered certain frailties in the complainant'sevidence. Given the brevity of the trial judge's reasons, they could not be sure that he had properly considered all relevant matters.

Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis forallowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does notgive reasons for deciding one way or the other on problematic points: see R. v. Smith, (SCC), [1990] 1 S.C.R. 991,affirming (1989), 1989 ABCA 187, and Macdonald v. The Queen, (SCC), [1977] 2 S.C.R. 665. The judge is not

required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explainwhy he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit acourt of appeal to set aside the verdict. This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with everyaspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they workday in and day out.

If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdictshould not be overturned merely because they fail to discuss collateral aspects of the case. [42] A similar point was made by Binnie J. in R. v. Sheppard, 2002 SCC 26 , [2002] 1 S.C.R. 869, S.C.J. No. 30 atparagraph 55, point 7: Regard will be had to the time constraints, and general press of business in the criminal courts. The trial judge is not held to someabstract standard of perfection.

It is neither expected nor required that the trial judge’s reasons provide the equivalent of a juryinstruction. [43] In R. v. R.E.M., [2008] 3 S.C.R., S.C.J. No. 52, at paragraph 43, McLaughlin, C.J.C. summarized the three main functions thata trial judge’s reasons serve: 1. to explain the decision to the parties; 2. to provide public accountability; and 3. to permit effectiveappellate review.

At paragraph 55 she writes: The appellate court, proceeding with deference, must ask itself whether the reasons considered with the evidentiary record, thesubmissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entirecontext.

It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. [44] It is only if I conclude that the trial judge on the record, as a whole, did not deal with the substance of the critical issues on thecase that I am entitled to conclude that the deficiency of the reasons constitutes an error in law (R. v. R.E.M. paragraph 57). [45] R.E.M. also addresses, at paragraph 43, the degree of detail required of trial judges in providing reasons.

The answer is provided in Dinardo and Walker -- what is required is that the reasons, read in the context of the record and thesubmissions on the live issues in the case, show that the judge has seized the substance of the matter. Provided this is done, detailedrecitations of evidence or the law are not required. [46] More recently in R. v. Vuradin, 2013 SCC 38 , [2013] 2 S.C.R. 639, S.C.J.

No. 38, the Supreme Court of Canadareiterated that “the core question in determining whether the trial judge’s reasons are sufficient is the following: “Do the reasons, read incontext, show why the judge decided as he did…?” [47] At paragraph 17 of his decision, the trial judge states: The third issue is the availability to the Crown of the presumption provided in s. 258(1)(c)(ii).

That presumption requires as a conditionprecedent that the first sample must have been taken within 2 hours of the driving. [48] In this case, it is clear that the trial judge was aware that the key issue in this case was whether the Crown could rely upon thepresumption. He summarized the evidence upon which he concluded that the driving had occurred within the two-hour time period. Thewording utilized in his decision demonstrates that he was alive, as well, to the fact that the witnesses were providing approximations oflengths of time.

For example, in referencing the shopkeeper’s evidence the trial judge quotes that the Appellant had been in the shop“less than five minutes” before the police arrived. [49] I am able to discern why the trial judge made his decision. His reasons, read in context, show why he made the decision. Thereis a logical connection between his conclusion on the timing of the driving and the verdict of guilty.

His reasons are sufficient to permitappellant review; they show what he decided, why he decided it and the nexus between the two. [50] Although it may have been preferable for the trial judge to have set out in greater detail the basis upon which he accepted thetime frame for driving and any issues with respect to reliability of the witnesses that he may have resolved in reaching this finding, I mustbe cognizant of the reality of day to day job of trial judges. Notwithstanding the brevity of the decision, when read in the context of theevidence presented and the record, it can be fully understood.

The trial judge identified the key issue of the two-hour time limit from thetime of driving and obtaining the first breath sample. It is clear from reading the decision, as a whole and in the context of the entirerecord, that he accepted the evidence of the two officers and the shopkeeper as to the material timelines and thereby arrived at a time ofdriving of not later than 3:26 p.m. Three witnesses gave consistent evidence that placed the time of driving less than 10 minutes prior towhen the police located the Appellant at the store.

Overall, I find that the decision achieves the three purposes articulated by theSupreme Court of Canada in R.E.M. Did the trial judge err in law by failing to provide sufficient or adequate analysis of witness testimony as relates to theCrown’s burden of proof? [51] In arguing this ground of appeal, the Appellant again submitted that the reliability of the witnesses should have weighedheavily in the determination of this matter, and the trial judge’s reasons made no reference to the weaknesses of the witnesses as raisedby the Appellant at trial or how those weaknesses were reconciled.

In particular, he argues that there was no discussion of why these

witnesses were found to be reliable on the issue of time. [52] In R. v. Vickerson (2005), (ON CA), O.J. No. 2798, 199 C.C.C. (3d) 165 (Ont. C.A.) at paragraph 28, theOntario Court of Appeal stated: A failure to address contradictions in the evidence of an important witness indicates that a trial judge has failed to address the reliabilityof that witness’s evidence: see R. v. Gostick (1999), (ON CA), 121 O.A.C. 355, 137 C.C.C. (3d) 53. This isparticularly true when the evidence to that witness bears the full weight of the case for the Crown: see R. v.

Quercia (1990), (ON CA), 75 O.R. (2d) 463, 60 C.C.C. (3d) 380. [53] The Appellant contends that in so far as the trial judge failed to comment on the police officers’ admission that they utilizedestimates to determine the timeline and to discuss the contradictions and uncertainties in the shopkeeper’s evidence, the judgment issilent on the issue of witness reliability. [54] I do not find that the trial judge failed in his commentary to the degree suggested by the Appellant.

It is clear on review of thedecision that the trial judge was aware that the officers had not recorded the time they had initially passed by the store and that the timeframes being referenced were estimates. In paragraph 5 of the decision, in reviewing the evidence, he refers to the Appellant’s vehiclenot having been parked in front of the store when the police had passed by “less than 10 minutes earlier.” At paragraph 18, the trialjudge acknowledges the police did not record in their notebooks every step of the process of finding the Appellant and bringing him tothe detachment to administer the breathalyzer.

This shows that the trial judge was cognizant of the fact that the officers’ timelines werebased upon estimates but he nonetheless heard the totality of the evidence, in context, and accepted their estimates along with that of theshopkeeper. [55] In referencing the shopkeeper’s evidence, at paragraph 7 of the decision, the trial judge writes as follows: The shopkeeper had been dealing with a customer when the man had come in the shop. Through the picture window, she saw the truckstopped across the parking lot, parallel with the road. The driver’s door was open.

The man had interrupted the conversation with thecustomer, and when he asked whether the shopkeeper’s “man” could carry him to Rencontre in his own boat, he smelled of alcohol. Hehad been in the shop “less than five minutes” before the police arrived. [56] This

summary of the evidence of the shopkeeper demonstrates that the trial judge was aware that the shopkeeper was providingan estimate of how long the Appellant was in the store prior to the arrival of the police. It also shows that the trial judge was aware thatthe shopkeeper may have been distracted to a degree up to the point that the Appellant entered the store as he states she was busy with acustomer when he entered the store and interrupted her conversation.

There was no contradiction, however, in the shopkeeper’s evidencewith respect to her estimate of time that the Appellant was in the store prior to the arrival of the police. In this regard it cannot be saidthat there was a contradiction in the evidence of an important witness such that the trial judge failed to address the reliability of thewitness (R. v. Gostick (1999), (ON CA), 121 O.A.C. 355, 137 C.C.C. (3d) 53 (Ont. C.A.)).

Nor can it be said that theevidence of any one witness bears the full weight of the Crown’s case on the crucial point of timing of driving as contemplated by (R. v.Quercia (1990), 60 C.C.C. (3d) 53 (Ont. C.A.)). Three witnesses provided testimony as to the timelines at issue all of which evidencewas consistent and uncontradicted. [57] In this case, it is clear from paragraph 19 of the decision that the trial judge analyzed the totality of the evidence on the issue oftiming of driving prior to reaching his conclusion that the Appellant had been driving the truck at, or after, 3:26 pm.

Paragraph 19 states: The shop keeper said that the accused had not been in the shop for 5 minutes when the police arrived. That put the time of driving at nolater than 3:31 p.m. Cst. Greening said that the blue GMC Sierra pickup truck had not been in front of the Wool Wagon shop when theyhad passed it by, “less than 10 minutes earlier” than when the demand for the roadside testing was made, at 3:36 p.m. Cst. Esculier saidthat the blue GMC Sierra pickup truck had not been in front of the shop at 3:25 p.m.

This meant that the accused had to have beendriving the truck at, or after, 3:26 p.m. [58] A reading of the whole of the decision, in context with a review of the entirety of the evidence, shows that the trial judgeassessed the evidence of the three witnesses. Each was each able to provide evidence relevant to the timing of driving. The trial judgeconcluded that this evidence was consistent in placing the time of driving at less than 10 minutes prior to the police arriving at the storeat 3:36 p.m. As such, I can find no error on the part of the trial judge to substantiate this ground of appeal.

Summary and Disposition [59] Overall, I find that the evidence adduced at trial was capable of supporting a conviction. The verdict was reasonable and therewas no fundamental flaw in the trial judge’s reasoning process that led to it. [60] Furthermore, I could find no error of law on the part of the trial judge. For these reasons, I dismiss the appeal and confirm thetrial judge’s decision. _____________________________ Sandra R. Chaytor Justice