R. v. Gromnisky, 2023 MBKB 88

Date: 20230524 Docket: CR 21-01-38856 (Winnipeg Centre) Indexed as: R. v. Gromnisky Cited as: 2023 MBKB 88 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING ) ) Zita De Sousa ) for the Crown (respondent) - and - ) ) Jay Prober KENT GROMNISKY, ) Daniel Wolson ) for the accused (appellant) accused ) ) Judgment Delivered : ) May 24, 2023 TOEWS J. Introduction [ 1 ] On November 29, 2021 the appellant was found guilty of the impaired operation of a conveyance, contrary to

section 320.14(1) (

a) of the Criminal Code of Canada (the “ Code ”) following a trial in the Provincial Court of Manitoba in relation to an offence committed on July 19, 2020. Following the conviction, the appellant was fined $1,000 and a one-year driving prohibition was imposed. [ 2 ] The appellant appealed his conviction to this court pursuant to s. 675(1) (a)(ii) of the Code stating that the learned trial judge misapprehended the evidence of impairment and the effect of an unexplained accident in which the appellant was involved prior to his arrest.

In doing so, the appellant states the trial judge erred in her determination of proof beyond a reasonable doubt that the appellant’s ability to operate his motor vehicle was impaired by alcohol to any degree. Similarly, the appellant argues that the trial judge failed to properly assess the credibility and reliability of the police officers’ evidence. [ 3 ] The appellant states that the jurisdiction to consider these two issues is pursuant to s. 686(1) (a)(

i) of the Code , which he characterizes as matters of mixed fact and law. The appellant states that the standard of review on which these issues are to be considered is that of palpable and overriding error. [ 4 ] Third, the appellant argues that the verdict is unreasonable and cannot be supported by the evidence. He states that the jurisdiction to consider this issue is afforded to the

summary conviction appeal court by s. 686(1) (a)(

i) of the Code in that it is a question of law in respect of which the standard of review is correctness. The Facts [ 5 ] Pursuant to an order dated February 17, 2022, a justice of this court, ordered a stay of the suspension of the driver’s license and the prohibition to drive subject to certain conditions set out in the order, pending the decision of the appeal of this matter. (See: R. v. Gromnisky , 2022 MBQB 58 , [2022] M.J. No. 80 (QL)) [ 6 ] The justice in the above-noted stay application summarized the relevant facts in a different legal context. However, while

adding some observations of my own which I consider relevant for the purposes of this appeal, I am of the opinion that it is instructive to reproduce his

summary of the facts and his

summary of the trial judge’s decision here. The justice held in the course of his reasons at paras. 4 - 8 4 In the early morning hours of July 19, 2020, Mr. Gromnisky was found by passing paramedics, after having driven his car into a ditch. He suffered a cut to his face but was otherwise uninjured. He declined medical attention. The paramedics withdrew from the scene and alerted police. 5 Mr. Gromnisky extricated his vehicle from the ditch and proceeded to drive down the highway; the paramedics followed. Ultimately, the police intercepted Mr. Gromnisky. 6 Upon attending Mr.

Gromnisky’s vehicle, the lead officer opined that Mr. Gromnisky was impaired by alcohol. He was arrested and placed in the back of the police cruiser. A second officer at the scene came to the same conclusion. 7 At trial, the paramedics testified; however, neither were asked nor opined whether they believed Mr. Gromnisky was impaired. As to the police officers, the accuracy of their testimony, regarding observations made of Mr. Gromnisky’s driving, was challenged using video evidence of his driving after the accident.

The trial Judge found that some of the lead officer’s evidence was “disproved by the video evidence”. Nonetheless, the judge accepted some of his evidence and that of his partner. 8 The judge convicted Mr. Gromnisky of impaired driving based on four factors. First, there was no explanation for why Mr. Gromnisky drove into the ditch. Second, the judge found that Mr. Gromnisky was driving imprudently, both by speeding and swerving on the highway. Third, the police officers testified they smelled the odour of alcohol on Mr. Gromnisky’s breath, he had red, glossy eyes, and he was excessively sweating.

Fourth, based on their experience and the stated indicia, the judge relied on the officers’ opinions that Mr. Gromnisky was impaired. [ 7 ] In respect of this

summary of the facts, I would note that while testifying the paramedics were not asked nor did they opine as to whether they believed the appellant to be impaired by alcohol. However, one of the paramedics did testify that the appellant was “standoffish”, apparently not wanting to be approached by the paramedic.

The paramedic also testified that the appellant to have a “somewhat … unsteady gait” and that was “kind of swaying slightly back and forth in [his] stance. (See Transcript, November 16, 2021, p. 14, lines 26-35; p. 15, lines 2, 16-17. 20) [ 8 ] It is also noted in the Transcript of November 16, 2021, at p. 17, lines 11-21, one of the paramedics testified as follows in respect of his observations of the appellant: Q Okay. And why didn’t you want them to drive away? A Just because we thought that they may have been intoxicated or under the influence. Q Okay. And what made you think that?

A Just with their [unsteady] gait. Usually when I come across somebody in this situation at work they normally want our help, so that was definitely a little – threw us off, I guess you could say. [ 9 ] While the transcript at this point reads “steady” as opposed to “unsteady” counsel advised me that in the context here it was in fact “unsteady”.

Indeed, whether it is a transcription error or other mistake in connection with the word “gait”, the context of the answer while describing why the witness thought the gait indicated impairment on the part of the appellant leads to no other reasonable conclusion than it was an “unsteady” gait that the paramedic stated he observed. [ 10 ] While making no specific comment regarding the one paramedic’s comment in respect of the appellant that “we thought that they might have been intoxicated”, the trial judge stated in her reasons (See Transcript, Reasons for Judgment, November 29, 2021, p. 2, lines 11-15):

[The paramedics] … observed Gromnisky next to his truck in a ditch. The roads were clear and dry. Traffic was light. Both observed what appeared to be blood on his face, and testified that in their experience it was unusual for individuals to waive off any medical treatment in these circumstances. … The Appellant’s Arguments [ 11 ] In arguing the issue of the misapprehension of the evidence of impairment and the effect of the unexplained accident, the appellant summarized four factors in the trial judge’s assessment of the trial evidence which she considered in arriving at her conclusion that the Crown had established that the offence had been proven:

a) In respect of the paramedics’ interaction with the appellant at the accident scene, the appellant states while the trial judge found that the roads were clear and dry and the traffic was light and that the paramedics smelt alcohol on the appellant’s breath, those factors are not sufficient to prove that the appellant’s ability to drive a motor vehicle was impaired by alcohol. He submits that there are other reasonable scenarios that are consistent with the accident that occurred in this case.

b) In respect of the trial judge’s finding that the appellant was driving imprudently by swerving and speeding, the appellant submits that while the appellant was travelling above the speed limit, the speed was not excessive and that the appellant’s vehicle over the time he was followed by paramedics and then subsequently by the police, was not observed to be swerving (by the paramedics) and that it was slight or minimal (by one of the officers). The appellant states that in her reasons the trial judge failed to mention the failure of the paramedics to observe any swerving.

c) The appellant argues that the trial judge relied on indicia of impairment observed by the police officers, including an odour of alcohol emanating from his breath, red glossy eyes and excessive sweating. The appellant submits that those symptoms are equally consistent with an individual who had just been involved in a car accident. He notes that the odour of alcohol may be indicative of consumption, but not evidence of impairment.

The appellant notes that one of the officers admits in his direct testimony to “misremembering” the appellant’s ability to maintain his balance upon exiting his vehicle after viewing the dash cam video recording on the police vehicle. The recording did not disclose that he was staggering or having any difficulty maintaining his balance and the appellant argues that this inconsistency ought to have caused the trial judge concern and difficulty in accepting the remainder of that officer’s evidence.

d) Finally, the fourth factor relied upon by the trial judge is that “both officers had extensive experience dealing with intoxicated individuals, and the behaviour of [the appellant] combined with the indicia of impairment led them to believe that he was impaired by alcohol.” (See Transcript, November 29, 2021 at pp. 2 and 3).

The appellant submits that it is unsafe to rely on the experience, expertise or observations of either officer when considered in conjunction with the video evidence. [ 12 ] On this basis, the appellant submits that the trial judge erred by misapprehending the evidence of the accident and the indicia of impairment and in doing so, committed a palpable and overriding error. [ 13 ] In respect of the trial judge’s assessment of the credibility and reliability of the police officers’ evidence, the appellant submits that the trial judge failed to properly consider the credibility and the reliability of the police officers’ evidence and therefore committed a palpable and overriding error. [ 14 ] In particular, the appellant submits that the police dash camera video recording stands in stark contrast to the evidence of Constable Chartrand.

The officer testified he saw the appellant’s vehicle cross the white shoulder line four times in the course of 500 metres and that the police dash cam video showed that the vehicle crossed the white shoulder line three times over a distance of 500-700 metres. The appellant submits that the dash cam video only showed the appellant’s vehicle cross the white shoulder line twice.

Furthermore, he states that contrary to the police officers’ testimony that when the appellant was pulled over, he stopped in an abrupt fashion that was unusual to them, the appellant submits that the appellant stopped his vehicle properly and in a smooth and safe manner. [ 15 ] Coupled with the constable’s testimony about “misremembering” the manner in which the appellant exited his vehicle, the appellant submits the dash cam video evidence disproved both constables’ evidence on a number of occasions.

On the basis of the trial judge’s failure to address material inconsistencies in respect of the credibility and reliability of the constables’ evidence in her reasons for judgment and by accepting the officers’ evidence pertaining to the indicia of impairment as credible and reliable evidence, the appellant argues that the trial judge committed a palpable and overriding error. [ 16 ] Finally, the appellant argues that the verdict is unreasonable and cannot be supported by the evidence.

He submits that the trial judge failed to properly direct herself to all of the relevant evidence before the court and failed to address the material inconsistencies in her reasons for judgment and did not articulate the process by which she endeavoured to accept the evidence of the officers regarding their observations of the indicia of impairment. [ 17 ] In particular, he argues that while the trial judge acknowledged that the video evidence disproved some of Cst. Chartrand’s testimony, she failed to properly consider its impact on the overall credibility and reliability of the police evidence.

Furthermore, he argues that the trial judge failed to consider the evidence of the paramedics about how they saw the appellant’s vehicle being driven and that together with the failure to consider the material inconsistencies in the police evidence, the decision amounts to an unreasonable verdict. The position of the Crown

[18] In its review of the facts, the Crown sets out the factors that it states demonstrates that the appellant was impaired by alcohol inhis ability to drive a motor vehicle. The Crown notes that while the trial judge acknowledged that there were some discrepancies in theevidence and did not accept some of the evidence, on the basis of what she did accept, she found the appellant guilty of the offence. (SeeFactum of the respondent, page 1, paras. 1-5) [19] The Crown does set out some evidence that is at odds with the appellant’s characterization of the events.

For example, while theappellant takes the position that the speed at which his vehicle was driving when leaving the accident scene was “not excessive”, theCrown notes that while the paramedics testified that they drove at or slightly above the 100 km speed limit, but not faster than 120 kmper hour, the appellant was travelling faster than and “pulling away [from them]”. (See Transcript, November 16, 2021 at page 38, lines10-36) [20] Furthermore, in addition to the appellant wearing sunglasses at the time of the traffic stop, which was sometime at about 3:30am, the constable who approached the driver’s side of the appellant’s vehicle noted a number of observations about the appellant,including sweating profusely, very glossy eyes and an odour of liquor from his breath.

He formed the opinion that the appellant wasintoxicated and therefore he was arrested for impaired driving. [21] In respect of the number of times the officers saw the appellant’s vehicle swerving, Cst.

Chartrand testified that he sees there arethree instances of the appellant’s vehicle crossing the line onto the shoulder on the recording, and that one instance occurred prior to thestart of the recording, which only commences when the emergency lights are activated. (See Transcript, November 16, 2021, p. 85, lines9-18) [22] It is the position of the Crown that the appellant is simply making the same arguments he made before the trial judge by arguingthat she misunderstood some of the evidence.

In disputing the position of the appellant that there was misapprehension of the evidenceor that the verdict was unreasonable, the Crown submits that what the appellant disagrees with is the trial judge’s treatment of theevidence, and her findings of fact and credibility. The Crown states that these determinations by the trial judge are subject to significantdeference and there is no basis upon which to disturb them. [23] The Crown agrees with the appellant that the standard of review for assessing whether there has been a misapprehension ofevidence is set out in R. v.

Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732 (QL) at para. 2 and reproduced at para. 21 of the appellant’sfactum which provides: 2 … The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather thanperipheral to the reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed asconjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but“in the reasoning process resulting in a conviction”. [24] Furthermore, the Crown states the standard of review for credibility findings, including inferences drawn, absent palpable andoverriding error, is deference. (See Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-25) [25] In respect of the standard of review for an unreasonable verdict, the Crown relies on the decision of the Supreme Court ofCanada in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746 (QL) at para. 10 which provides: Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court of appealthat reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para.7). [26] The Crown notes that the trial judge sets out the evidence that she did accept, including the unexplained accident, the swervingand speeding that occurred after the appellant got his vehicle out of the ditch, the indicia of impairment observed by the attendingofficers and the officers’ belief as to the appellant’s impairment as informed by their experience in dealing with intoxicated persons.

TheCrown states that she convicted the appellant based on her assessment of the evidence as a whole and a proper legal analysis. [27] In respect of the deference that is to be attached to the findings of credibility by a trial judge, the Crown relies on a number ofhigher court decisions, including the decision of the Manitoba Court of Appeal in R. v. C.A.M., 2017 MBCA 70, 354 C.C.C. (3d) (QL),which holds at para. 32 of that decision: 32 Trial judges are commonly required to resolve conflicting versions of events by making an assessment of the credibility ofwitnesses.

Given the advantage of hearing and seeing the witnesses first hand and the reality that “assessing credibility is a difficult anddelicate matter that does not always lend itself to precise and complete verbalization” (R v REM, 2008 SCC 51 at para 49), the standardof review of a trial judge’s credibility assessment is demonstration of palpable and overriding error. See also Schwartz v Canada, (SCC), [1996] 1 SCR 254 at para 32; and R v Gagnon, 2006 SCC 17 at para 10.

[ 28 ] The Crown points out that although the testimony of one of the police officers was contradicted by the dash cam video recording, the trial judge considered that contradiction but accepted the balance of the officer’s testimony in determining the matter.

The Crown argues that she was entitled to do so and that her findings in this respect are owed significant deference. [ 29 ] In respect of the appellant’s submission that the verdict is unreasonable, the Crown takes the position that if the evidence of impairment establishes any degree of impairment ranging from slight to great, that element of the offence of impaired operation of a motor vehicle has been made out.

The Crown argues that on the basis of the indicia of impairment in this case, the trial judge was entitled to rely on the evidence in coming to the conclusion that the appellant was impaired and she did so. [ 30 ] The Crown’s submission is that the trial judge was entitled to consider both the unexplained accident and the speeding in her consideration of the totality of the evidence. The trial judge detailed the evidence she relied on to support her finding of guilt.

The Crown states that having regard to the evidence as a whole, there is no basis to find that the trial judge’s conclusion is not supported on “any view of the evidence” (see R.P. ); rather the conclusions are supported and there is no basis for appellate interference.

Decision [ 31 ] In coming to the conclusion that there is no basis for appellate interference in this matter, I would note that both counsel agree on the legal basis governing an appellate court’s jurisdiction to review the trial judge’s decision in this case. [ 32 ] I agree with both counsel that the trial judge’s consideration of the evidence of impairment and the effect of an unexplained accident in which the appellant was involved prior to his arrest and her assessment of the credibility and reliability of the police officers’ evidence, are reviewed on the standard of palpable and overriding error. [ 33 ] I also accept the appellant’s position that the standard of review in respect of whether the verdict is unreasonable and cannot be supported by the evidence is a question of law in respect of which the standard of review is correctness. [ 34 ] The appellant takes issue with the fact that the trial judge does not appear to deal explicitly with all of the evidence which she was required to consider in coming to the conclusion that the appellant is guilty of the offence.

In my opinion, the reasons for judgment set out the material facts and properly and sufficiently set out the basis upon which she concludes that the appellant was impaired by alcohol in his ability to drive a motor vehicle.

Again, as the Manitoba Court of Appeal noted in C.A.M. at para 32 : 32 … Given the advantage of hearing and seeing the witnesses first hand and the reality that “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization” ( R v REM , 2008 SCC 51 at para 49 ), the standard of review of a trial judge’s credibility assessment is demonstration of palpable and overriding error. … [ 35 ] The issue of impairment is a question of fact, as is the determination of the credibility and reliability of the testimony provided by a witness.

In her reasons, she concisely and in a very rational and reasonable manner, sets out four factors which leads her to conclude that upon her consideration of the evidence in totality, the Crown has established the guilt of the appellant beyond a reasonable doubt. [ 36 ] These four factors include her consideration of: i. the unexplained accident; ii. the manner of driving prior to being stopped by the police, including her finding of how many times the vehicle crossed the white shoulder line and swerving towards the centre line; iii. the evidence of the police officers in respect of the indicia of impairment; and iv. the extensive experience of the officers in dealing with intoxicated persons. [ 37 ] It is important to note that prior to setting out these four factors the trial judge specifically noted that some of Cst.

Chartrand’s evidence was disproved by the video evidence. However, she goes on to state that on the basis of the evidence which she does accept, and which she sets out in the four factors immediately following her introductory comments about Cst.

Chartrand’s evidence, she finds the appellant’s ability to drive was impaired. [ 38 ] She states in respect of her consideration of the evidence (See Transcript, Reasons for Judgment, November 29, 2021, page 3, lines 5-12): If one were to assess each piece of evidence on its own it may not prove the offence. [As was argued] a slight travelling along a highway line is not, in and of itself, evidence of impairment. However, evidence is not assessed in a vacuum. It is assessed in totality.

And based on the totality of the evidence, the Crown has established beyond a reasonable doubt that [the appellant’s] ability to operate his motor vehicle was impaired by alcohol on that day. [ 39 ] It is my opinion that in considering the reasons of the trial judge, I am not satisfied that there is any palpable and overriding error

in her consideration of the evidence. The trial judge detailed the evidence that she accepted, including the unexplained evidence, theswerving and the speeding, the indicia of impairment, and the officers’ belief as to the appellant’s impairment. She also dealt with thediscrepancies in the evidence, particularly as it related to the evidence of Cst. Chartrand. [40] In her consideration of the evidence, it does not appear to me that there was any misapprehension of the evidence by the trialjudge, much less a material misapprehension or obvious error. It is her

interpretation of the evidence that the appellant takes issue withand that does not provide this court with a basis to interfere with her decision. In taking a contextual and functional approach whenconsidering the entire record, I find there is nothing in her consideration of the evidence as a whole, that provides a basis for interferenceby an appellate court. [41] Similarly, her assessment of the credibility and reliability of the witnesses in this case does not indicate something significant inher reasons or the record that she erred.

She was entitled to accept some, none or all of the evidence provided by any of the witnesses. Itis clear that she accepted some while not accepting or relying on other evidence. In the absence of employing faulty methodology inmaking these decisions, she is entitled to deference.

I see no faulty methodology in her assessment of credibility and the reliability of theevidence and therefore there is no basis to interfere with her decision on this basis. (See C.A.M. at paras. 33-34, and 36) [42] Furthermore, I do not accept the appellant’s argument that the trial judge’s verdict is unreasonable and cannot be supported bythe evidence. [43] The standard of review for an unreasonable verdict was set out by the Supreme Court of Canada in R.P., which held at paras. 9-10: 9 To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v.

Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise beencontradicted or rejected by the trial judge (R. v.

Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007SCC 5, [2007] 1 S.C.R. 190). 10 Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court ofappeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [44] As stated in R.P. in the preceding paragraph, this issue is one of law, which attracts the higher standard of review of correctness. Nevertheless, I find no error on the part of the trial judge. In reviewing the entire record, including the decision of the trial judge, I findthat:

a) the verdict is one that a properly instructed jury or a judge could reasonably have rendered;

b) the trial judge has not drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by theevidence relied on by the trial judge in support of that inference or finding; and

c) the trial judge has not drawn an inference or made a finding of fact essential to the verdict that is shown to be incompatible withevidence that has not otherwise been contradicted or rejected by the trial judge. [45] In the result, the appeal is dismissed. Accordingly, the stay of the suspension of the driver’s license and the prohibition to drive,pending the decision of the appeal of this matter, ordered by a justice of this court on February 17, 2022, is at an end.

The suspension ofthe appellant’s driver’s licence and the prohibition to drive is reinstated and continued in accordance with the applicable statutoryprovisions. The appellant is to be advised of the termination of the stay and the reinstatement of the license suspension and prohibitionon driving forthwith. J.