R. v. Langley, 2012 NSSC 229

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Langley, 2012 NSSC 229 Date: 20120613 Docket: Syd No. 340085 Registry: Sydney Between: Kenneth Norman Langley Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Cindy A.

Bourgeois Heard: June 13, 2012, in Sydney, Nova Scotia Written Decision: June 14, 2012 Counsel: Vincent Gillis, Q.C. for the Appellant Alonzo Wright, for the Respondent By the Court : [ 1 ] The Appellant, Kenneth Norman Langley, appeals from the decision of the Honourable Judge Jean Whalen rendered October 22, 2010, whereby he was convicted on a charge of, on December 19, 2007, operating a motor vehicle after consuming alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s.253 (

b) of the Criminal Code of Canada . The Appellant had been acquitted of a companion charge under s.253 (a). Issues: [ 2 ] In the Notice of

Summary Conviction Appeal, the grounds of appeal are stated as follows: 1. The trial judge erred in law in finding that the Crown had satisfied the onus of establishing all pre-conditions necessary to allow it to rely upon the statutory presumption in s.258(1)(

c) of the Code;

2. The trial judge erred in law in allowing the Crown to rely upon the statutory presumption in s.258(1)(c). 3. The trial judge erred in law and fact in finding sufficient evidence to establish that the appellant had driven his motor vehicle within two hours immediately before the administration of the first breath sample; 4. The trial judge erred in law and fact in convicting the appellant by failing to give consideration to the principle of reasonable doubt and to properly apply the principle of reasonable doubt to the facts and to the whole of the evidence. Powers of a

Summary Conviction Appeal Court: [ 3 ] This appeal is brought pursuant to

Section 813 (a)(

i) of the Criminal Code .

Section 822 applies, providing amongst other things, that ss.683 to 689 (with two exceptions and modifications) apply. These provisions outline the powers and limitations of a court of appeal. [ 4 ] Relevant to the matter before me, Section 686(1)(a), (

b) and (2) provide: 686(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, 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 that 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.

Standard of Review: [ 5 ] The applicable standard of review is as set out in the case of R. v. Nickerson, 1999 NSCA 168 , where it is stated:

The scope of review of the trial court’s findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.C.A.) Per Jones, J.A. at p.176. Absent an error of law or a miscarriage of justice, the test to beapplied by the

Summary conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported bythe evidence. As stated by the Supreme Court of Canada in R. v. B.(R.H.), (SCC), [1994] 1 S.C.R. 656 (S.C.C.) at 657,the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether itis reasonably capable of supporting the trial judge’s conclusions. If it is, the

Summary Conviction Appeal Court is not entitled tosubstitute its view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it isneither a simple review to determine whether there was some evidence to support the trial judge’s conclusions nor a new trial on thetranscript. [6] Cromwell J.A., as he then was, in R. v. Barrett 2004 NSCA 38, outlined the scope of appellate review of evidence relied uponto support a verdict as follows: “[15] This Court may allow an appeal in indictable offences like these if of the opinion that “...the verdict should be set aside on theground that it is unreasonable or cannot be supported by the evidence.”: s.686(1)(a)(i).

In applying this section, the Court is to answerthe question of whether the verdict is one that a properly instructed jury (or trial judge), acting judicially, could reasonably haverendered: Corbett v. The Queen, (SCC), [1975] 2 S.C.R. 275 at 282; R. v. Yebes (SCC), [1987] 2S.C.R. 168 at 185; R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381 at para.36. [16] The appellate court must recognize and give effect to the advantages which the trier of fact has in assessing and weighing theevidence at trial.

Recognizing this appellate disadvantage, the reviewing court must not act as if it were the “thirteenth juror” or giveeffect to its own feelings or unease about the conviction absent an articulable basis for a finding of unreasonableness. The question isnot what the Court of appeal would have done had it been the trial court, but what a jury or judge, properly directed and acting judicially,could reasonably do: Biniaris at paras. 38-40. [17] However, the reviewing Court must go beyond merely satisfying itself that there is at least some evidence in the record, howeverscant, to support a conviction.

While not substituting its opinion for that of the trial court, the court of appeal must “...re-examine and tosome extent reweigh and consider the effect of the evidence.”: Yebes at 186. As Arbour, J. put it in Biniaris at para.36, this requires theappellate court “...to review, analyse and, within the limits of appellate disadvantage, weigh the evidence...” [7] As is clear from the above, it has been long recognized that the standard of review for an alleged error of law is correctness. However, the required analysis does not conclude once an error has been identified on the part of the trial judge.

A further step isrequired for a full and proper review. This is succinctly articulated by Beveridge, J.A. in R. v. Spinney, 2010 NSCA 4 at para. 30 asfollows: “[30] In a general way, s.686(1)(b)(iii) permits an appeal court to uphold a conviction despite the existence of one or more errors of law. To conclude that there has been a harmless error, the Crown must establish that the errors did not result in a substantial wrong ormiscarriage of justice.

This requires that the appeal court be satisfied that there is no reasonable possibility that the verdict would havebeen different had the error in law not been made (see R. v. Merz (1999), (ON CA), 46 O.R. (3d) 161 (C.A.)). Furthermore, the application of the proviso raises a question of law alone (R. v. Mahoney, (SCC), [1982] 1 S.C.R. 834).” Evidence at Trial: [8] The evidence at trial was not complex, nor lengthy. The Crown called two witnesses in support of its case. The Appellant asis his right, chose not to call evidence. A

summary of the evidence pertinent to this appeal follows. [9] The first Crown witness, Mr. Andrew MacDonald testified that on December 19, 2007, in his capacity as a volunteer memberof the Baddeck Fire Department, received a page to attend a motor vehicle accident which involved a person requiring assistance. Mr.MacDonald testified he received the call around 11:30 p.m., and given the location of the accident, would have arrived on scene atroughly 11:37 p.m.

[ 10 ] Mr. MacDonald testified as to his observations as to the roadway on which the accident occurred. He described it as being a gravel roadway, with snow banks on either side due to previous snow plowing activities. On the way to the accident, Mr. MacDonald noted the road as being very dark and covered with an inch or two of “fresh” snow. There was only one set of vehicle tracks visible. The witness described that these tracks were “kinda floating in and off the road.” Following the tracks, Mr. MacDonald came upon a vehicle. [ 11 ] The vehicle was laying on its driver side, up on the snowbank.

It was not running. The Appellant was inside the vehicle alone. He was located between the driver and front passenger seats. Mr. MacDonald described the Appellant’s location in the vehicle as being “half upside down” and not “in a position to drink.” The dome light was on and the passenger’s side door was “cracked a little bit”. Mr. MacDonald helped the Appellant from the vehicle, who indicated that he was unhurt. The witness described that upon exiting the vehicle and navigating down the snowbank, he was unsteady on his feet. Once in Mr.

MacDonald’s vehicle, he testified he noted a strong smell of alcohol coming from the Appellant. Mr. MacDonald indicated he viewed the Appellant as being impaired and “shouldn’t have been operating a vehicle that night.” [ 12 ] Mr. MacDonald testified as to the conversation he had with the Appellant while seated in his vehicle. Page 16 of the transcript discloses the following: “Q. Tell us what takes place in the conversation. A. Ah, I asked him where he lived, ah, he told me town. I was askin’ him where he came from, and ah, he told me he was over at Allen Henderson’s, which is over on my road actually. Ah.... Q.

What’s Allen Henderson? A. Ah, that’s a house. He was visiting with a neighbour of mine, but ah, that’s where he said he was...he had just left, and that’s where I was a little confused because he actually lives in the opposite direction of where he headed to, right. He lives in town and this is a road in the opposite direction, so.” [ 13 ] Mr. MacDonald found the Appellant’s responses to a number of questions “confusing”. Mr. MacDonald departed after the arrival of the RCMP. [ 14 ] Constable Aaron Brown testified that he arrived at the accident scene at approximately 11:47 p.m.

Although the original call for assistance had been received around 11:19 p.m. difficulties with the directions provided caused a delay in arrival. It was a cold evening, and it was snowing. [ 15 ] Constable Brown testified as to the signs of impairment noted, including glossy eyes and slurred speech. The odour of alcohol emanating from the Appellant was described as being “strong” once placed in the police vehicle. The witness testified he placed the Appellant under arrest, and subsequently inspected the vehicle where he found one can of beer approximately 25% full.

The witness further testified that the Appellant did not appear to be injured, nor did he request medical assistance. [ 16 ] The Appellant was transported to the RCMP Detachment in Baddeck, and provided a breath sample at 12:34 a.m., followed by a second 20 minutes later, at 12:54 a.m. According to the Certificate of Qualified Technician dated December 20, 2007, both tests registered 130 milligrams of alcohol per 100 millilitres of blood. [ 17 ] In cross examination, the witness was questioned as follows as to how the RCMP had become aware of the accident: “Q.

When I read through the material that was disclosed to the Defence, I, ah, I gathered from that material that you were responding to a call from a male who said that he was trapped in his vehicle. A. That is correct, yes.”

Position of the Parties: [ 18 ] Notwithstanding the four separate grounds specified by the Appellant, there is really one central argument advanced which goes to the heart of the appeal. [ 19 ] The Appellant submits that because there was no evidence to establish beyond a reasonable doubt that the Appellant had operated his motor vehicle during the two hours prior to the first breath sample being taken, that the Certificate documenting his blood levels should not have been considered.

As part of this, it is submitted that the learned trial judge erred by drawing an inference that the Appellant had been driving in the requisite two hour period. [ 20 ] The Appellant relies upon a decision of Scanlan, J. in R. v.

Chenoweth 2008 NSSC 137 , where a similar conviction was set aside, when the Court found it had not been proven that the accused had care and control of a motor vehicle in the two hours preceding the first breath sample. [ 21 ] The Respondent asserts that the learned trial judge could reasonably and properly infer from the evidence adduced at trial that the Appellant was driving within the requisite two hour period. As such, the breath readings were properly before the Court, and the conviction warranted.

Analysis: [ 22 ] I have carefully considered the transcript of the proceedings, the decision of the learned trial judge, and the submissions of Counsel. The outcome of this appeal flows from a determination as to whether the learned trial judge erred in concluding the Appellant drove the motor vehicle within the two hours preceding the first breath sample being taken.

Or, more plainly, was it reasonable for the learned trial judge to infer the Appellant had been driving sometime between 10:34 p.m. and 12:33 a.m. on December 19/20, 2007? [ 23 ] As was aptly raised by the Appellant, there was no direct evidence as to how long he had been in his vehicle from the time it became lodged on the snowbank until the first breath sample was taken. He asserts the Crown did not prove beyond a reasonable doubt that he had driven the vehicle within the preceding two hours, and as such, it was an error for the judge to make such an inference.

It is asserted that because it is unclear from the evidence how long the Appellant was in the motor vehicle, that the trial judge erred in inferring he had been driving in the two hour period. [ 24 ] The record clearly establishes that the learned trial judge did make such an inference, and the conviction under s.253(

b) resulted accordingly. In terms of considering the appropriateness of drawing the inference, I have found helpful the comments of Oland, J.A. in Kern v. Steele 2003 NSCA 147 where the distinction between an inference and a conjecture were described as follows: “[98] Two of the leading cases on the difference between inference and speculation or conjecture are Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 (H.L.) And in Caswell v. Powell Duffryn Associated Collieries Limited [1940] A.C. 152 .

In the former, Lord Macmillan stated at p.45: ‘The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.’”

In the latter, Lord Wright stated at p.169-170: “Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective factsfrom which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practicalcertainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there areno positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation orconjecture.” [25] Justice Warner has recently addressed the role of inferences in the context of a

summary conviction appeal. Althoughaddressing the correct standard of review, his comments are informative as to the issue before me. In R. v. Ellis, 2008 NSSC 178 hewrites: “[38] Legal conclusions based on factual conjecture, possibility, or speculation on important matters where there is a complete absenceof evidence on the record, will constitute a misapplication of the law requiring appellate intervention. See for example R. v. Torrie, (ON CA), [1967] 3 C.C.C. 303 (Ont. C.A.); R. v. Coote, (SK CA), [1970] 3 C.C.C. 248 (Sask.C.A.); andR. v.

Leblanc, (NB CA), [1981] 64 C.C.C. (2d) 31 (N.B.C.A.). [39] As noted by Chipman, J.A. in R. v. White (1994), 89 C.C.C. (3d) at 351: ‘These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from thewhole of the evidence on the other. The failure to observe the distinction involves an error on a question of law. This court is, therefore,empowered and obliged to intervene when such error has occurred.’” [26] The decision of Chipman, J.A. in R. v. White (1994), 1994 NSCA 77 , 89 C.C.C. (3d) 336 is also pertinent as to theproper use of inferences.

There, an acquittal at trial was set aside, and a conviction entered on a charge of impaired driving causingdeath. The Court describes the approach of the trial judge as follows: “[19] The trial judge then referred to the fact that no witnesses testified either to the accident itself or the movement of the vehiclesbeforehand. There was no evidence of erratic driving on the respondent’s part prior to the accident. The trial judge observed that theCrown relied totally on the evidence of Constable Richardson who had been qualified to testify as a collision analyst.

His evidencewould, the trial judge said, be classified as circumstantial evidence.

Before a guilty verdict could be based on such evidence, the trialjudge considered that he must be satisfied beyond a reasonable doubt that the guilt of the accused was the only reasonable inference to bedrawn on the proven facts.” [27] And subsequently directly quotes the trial judge’s conclusion at para.23 as follows: “[23] In the absence of any direct evidence as to why the vehicle went to the shoulder of the road, I am unable to find that the onlyreasonable inference is that this error was caused by the fact that the driver’s ability to operate the vehicle was impaired by alcohol.

Themovement is consistent with the driver suffering from fatigue, from a confusion as the result of a sudden appearance of light fromoncoming headlights or from excessive speed or inattention. As I have reasonable doubt on this element of the offence, I must find theaccused not guilty.” [28] Chipman, J.A. then states as follows: “[54] In R. v. Dubois (1979), 1979 ABCA 230 , 49 C.C.C. (2d) 501 (Alta. C.A.) MacGillvray, C.J.A. whose reasons wereadopted by the Supreme Court of Canada in R. v.

Dubois, (SCC), [1980] 2 S.C.R. 21 said: ‘...I am respectfully of the view that the learned trial judge’s observations in the course of argument, taken with his reasons for judgment,establish clearly that he failed to distinguish between a rational conclusion, based on evidence, and a conclusion based on conjecture andunsupported by evidence; and that this is an error in law and that he misdirected himself.’

[55] At p.509, MacGillvray, J.A. quoted with approval the following passage from R. v. McIver (1965), (ON SC), 1C.C.C. 210 (Ont. C.A.) Affirmed by the Supreme Court of Canada (1966), 2 C.C.C. (289) where McRuer, J. said: ‘The rule makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and the conclusions alternate tothe guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rationalconclusion that is not founded on evidence.

Such a conclusion would be a speculative, imaginative conclusion, not a rational one.’” [29] In short, the trial judge improperly inferred that there could be other reasons for the accused’s manner of driving, other thanimpairment, where there was no evidentiary foundation for same. Implicit in the Court of Appeal’s decision is that the Crown was not,in order to justify a conviction, required to establish beyond a reasonable doubt, that the various other possible explanations were notplausible.

The trial judge had erred in taking that approach. [30] Clearly, it is not improper for a trial judge to draw an inference, provided that evidence, otherwise proven on the requisiteburden of proof, supports it. [31] This is perhaps an appropriate juncture to look more closely at the decision in R. v. Chenoweth, supra. In that instance Mr.Chenoweth had been convicted of having care and control of a motor vehicle while “over 80".

Justice Scanlan set aside the conviction,after finding that the Crown had not proven, nor had the trial judge clearly dealt with, the time frame when the accused had care andcontrol. [32] With respect, a closer look at the circumstances in Chenoweth, supra establishes some significant differences from the presentcase. There, the only evidence at trial relating to the time frame when the accused was driving or had care and control of a motorvehicle, was from a witness who testified he came to his door seeking assistance at 4 a.m.

Justice Scanlan explains: “[5] In this case, the only evidence in terms of time is from Mr. Craib, who indicates that at 4:00 o’clock the appellant came to his doorand he had blood on his head. That bespeaks of the time at which the appellant arrived at his door, but there is nothing beyond that interms of care and control. We know one thing for sure, at 4:00 ‘clock he didn’t have care and control because he wasn’t in the car, hewas at Mr. Craib’s door. We don’t know how far it is from Mr. Craib’s house to the car.

The appellant was dazed, incoherent, andaccording to the crown assertions, impaired at 4:00 o’clock. So we do not know when the accident happened or the time he had care andcontrol. [6] It’s not enough for the crown to say draw an adverse inference based on the fact the accused could have testified and clarified this. To do so in the circumstances of this case would be to place the burden on the accused to prove his innocence.

There’s nothing beforethe court to suggest that there was sufficient evidence called by the crown in terms of care and control whereby the accused had anythingto rebut by way of inference.” And further: “[8] There was no evidence, as I indicate, as to the time that he had care and control. In the absence of the evidence, I don’t know howthe trial judge could make an inference as to the time of the driving. In many cases where there are single vehicle accidents with nowitnesses there is the type of evidence that the crown needs to show a period during which driving had occurred.

That could forexample include expert evidence based on things that are in the car’s computer systems we hear about nowadays. It may be based onother things such as people who may have observed an accused prior to the accident leaving such and such a place at such and such atime or based on people who come by and see an accused in a car afterwards. All of those things are still available to the crown, but inthis particular case that evidence is missing.

There’s a complete lack of evidence of any sort whatsoever as to the time at which thisappellant had care and control. ...” (Emphasis added) [33] I cannot agree with the Appellant that Chenoweth, supra is of assistance to his position. Here, unlike the scenario in front ofScanlan, J. the learned trial judge heard evidence and made findings of fact which related to determining when the Appellant had been

driving. She had the unrefuted evidence of Mr. MacDonald and Constable Brown, which provided temporal context. [ 34 ] In her decision, the learned trial judge states: “The Crown always has the burden to prove beyond a reasonable doubt the guilt of the accused. I have the evidence of two Crown witnesses. Mr. Langley did not testify, so I do not have to consider R v. W.D. Mr. Gillis has suggested that the Crown hasn’t established time of driving, suggesting that his client sat in his car for awhile doing who knows what, but the Court hasn’t heard from Mr. Langley, and I am mindful that it is not up to Mr.

Langley to prove his innocence. The Crown has the burden of proof. But I must consider all of the evidence before me. There is no evidence he passed out due to injuries or alcohol consumption. He did not complain of being cold or of suffering the effects of a cold night, a cold and snowy night. He denied needing any medical attention whatsoever. Based on all of the evidence before me I find it is reasonable to infer that Mr. Langley was driving that vehicle just moments before that 911 call, and little if any time had passed. So based on all of that, I find Mr. Langley guilty of the

Section 153(

b) charge, (sic) which is the “over 80". [ 35 ] I cannot agreed that the above statement represents a switching of the burden of proof to the Appellant. The learned trial judge recognized that such would be inappropriate.

What is clear, is that from the evidence before her, the learned trial judge inferred that the Appellant had been driving just moments before the 911 call had been placed by him, well within the two hours prior to the first breath sample. [ 36 ] The inference is not an unreasonable one based upon the noted condition of the Appellant, the weather conditions, the timing of the 911 call, and the Appellant’s own comment to Mr. MacDonald at the accident scene, that he had “just left” Allen Henderson’s home. [ 37 ] Unable to conclude the learned trial judge erred, the appeal is dismissed. J.