2011 ONSC 2213, 2011 ONSC 2213

CITATION : R. v.Pinard, 2011 ONSC 2213 COURT FILE NO.: 09-2213 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) Riad Tallim, for the Crown Respondent ) ) ) - and - ) ) ) FANNY PINARD ) ) ) Lawrence Greenspon, for the Appellant Appellant ) ) ) ) ) HEARD: March 30,2011 REASONS FOR DECISION Parfett J. [ 1 ] The Appellant, Fanny Pinard, appeals her conviction dated July 9, 2010 pursuant to s. 254(5) of the Criminal Code of Canada . [1] For the reasons outlined below the appeal is allowed and a new trial ordered.

Background [ 2 ] The Appellant was charged with dangerous driving pursuant to s. 249 and failing to comply with a demand for a roadside breath sample pursuant to s. 254(5) of the Criminal Code of Canada arising out of an incident that occurred on August 8, 2009. On that date, the Appellant was travelling from a campsite in the west-end of Ottawa. She was driving in the dark on a route with which she was unfamiliar. She turned left from Corkstown Road onto March Road. At that location, March Road consists of three southbound lanes and three northbound lanes separated by a median.

The Appellant turned south into a northbound lane. She narrowly avoided hitting a motorcyclist and ultimately came to a stop against the median. [ 3 ] Cst. Genevieve Bolduc arrived on the scene and smelt alcohol on the breath of the Appellant. The Appellant admitted to having consumed ‘a drink’ at the campsite. Having formed a suspicion that the Appellant was driving with alcohol in her system, Cst. Bolduc demanded that the Appellant provide a sample of her breath into a roadside screening device. She demonstrated how to use the device to the Appellant.

The Appellant made a total of 23 attempts to blow into the roadside screening device. Cst. Bolduc needed to use two

separate roadside screening devices because after 11 attempts, the first device displayed a ‘low battery’ message. A second screening device was available at the scene, but the Appellant was not successful in providing a sample into that device either. Ultimately, she was charged with failing to comply with a demand to provide a breath sample. [ 4 ] At trial, the Appellant was acquitted of the dangerous driving charge. The Trial Judge found: The evidence also discloses that the accused lives in Québec, and that she was following directions given to her by her then partner, Jean, on how to reach his place.

She had never driven that route before. Although the intersection, where she turned left onto March Road, is well lit, she was unaware that there were three northbound lanes, and mistakenly turned into the third lane, and of course ended up going south in the northbound lane. In my view, a mistake like this could very well happen, and the circumstances she found herself in. It’s always easy to play Monday morning quarterback and list evasive actions that she could have taken. But here she did what she felt was appropriate in the circumstances.

I feel that the original charge laid under the Highway Traffic Act would have been far more appropriate than the dangerous driving charge. I don’t feel the dangerous driving case approaches the level required to prove guilt beyond a reasonable doubt.

She will be found not guilty on count number two [dangerous driving]. [ 5 ] On the charge of failing to comply with a demand to provide a sample into an approved screening device, the Trial Judge found: As to the fail to comply with the approved screening device demand, I have concluded that the accused’s overall conduct during the attempts, clearly demonstrate an intention to frustrate the taking of the screening device sample. No reasonable excuse exists here, when it is so clear that she was frustrating the attempts to get a reading.

Issues [ 6 ] Both parties agree that a central issue in this case was the Appellant’s intent. The Appellant argues that the Trial Judge did not properly apply the burden of proof in that he rejected her evidence, but did not properly assess the reliability of the remaining evidence – that of Cst. Bolduc. She also states that the Trial Judge did not provide sufficient reasons to allow for meaningful appellate review or to allow the Appellant to understand why she was convicted.

The Appellant notes that the Trial Judge accepted her explanation regarding how she ended up going the wrong way on a divided street, but did not accept her explanations concerning her failure to provide an adequate breath sample.

She contends that the Trial Judge was obliged in such circumstances to make clear why her testimony on the issue of providing a roadside breath sample was rejected. [ 7 ] The Respondent contends that a reading of the Trial Judge’s reasons as a whole, clearly demonstrates that he was alive to the issues of intent and reasonable excuse, that his rejection of the Appellant’s evidence was justified on the record. The Respondent also argues that the Trial Judge noted and dismissed the weaknesses in Cst. Bolduc’s evidence, and therefore there was no reversal of the burden of proof. Analysis [ 8 ] In R. v.

R.E.M. , [2] the Supreme Court of Canada discussed the function of a trial judge’s reasons. The Court noted that there are three main functions served by reasons: 1. To tell the parties affected by the decision why the decision was made; 2. To provide public accountability of the decision; and 3.

To permit effective appellate review. [3] [ 9 ] The test for a reviewing court is whether, based on the record before the court, a jury properly instructed and acting reasonably could have rendered the decision. [4] An appellate court must look at the decision in the context of the evidence, the arguments and the trial. [5] As noted in R. v. Braich [6] , The general principle affirmed in Sheppard is that “the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required.

The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case” (para. 33). The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. [7] [ 10 ] In reviewing a decision on a

summary conviction appeal, the court must also take into consideration the fact that the trial court is a busy fast-paced court. Trial judges do not have the luxury of sitting down and spending time reviewing transcripts and case law before rendering a decision. As a result, as noted in R. v. Burns [8] :

Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing 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 not give reasons for deciding one way or the other on problematic points […]. 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 explain why 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 a court 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 every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out.

If they state their conclusions in brief compass, and these conclusion are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. [9] [ 11 ] Where credibility is a central issue in a case, the Supreme Court of Canada has provided instruction on the approach that a court must take in R. W. (D.) [10] . However, the Court has also held that it is not necessary to recite this formula word for word, or even to make direct reference to the case in reasons for decision.

It is the application of the test in weighing and considering the evidence that is mandatory. [11] [ 12 ] In this case, the Trial Judge unequivocally rejected the Appellant’s contention that she was honestly trying to provide a sample. [12] The Appellant stated that she tried in every way possible to blow into the machine. [13] She also indicated in her testimony that it was possible that she was unable to provide a sample due to shock, her smoking habit or shortness of breath due to hyperventilating. [14] The Judge rejected these excuses [15] and added that in his view: The icing on the cake for the Crown, [were] the attempts from number 18 on, when [the Appellant] began holding the mouthpiece with her teeth and pushing downwards.

This is so blatantly contrary to all instructions given and demonstrations provided that it proves to me the accused never had any intention of providing a proper sample. [16] [ 13 ] The Trial Judge also noted in his reasons that Cst. Bolduc knew how to administer the test, and that in his view the Appellant knew what was required of her. The trial record showed that Cst.

Bolduc demonstrated the use of the roadside device more than once, and advised the Appellant when she was doing something wrong. [17] In my view, nothing further was required of the Trial Judge in terms of rejecting the Appellant’s evidence. [ 14 ] The Appellant contends that given that the Trial Judge had accepted her explanation concerning the dangerous driving charge that it was incumbent on him to explicitly address the second branch of the W.D. test. I disagree.

In his reasons concerning the dangerous driving charge, the Trial Judge did not so much accept the Appellant’s evidence as find that it could reasonably be true and therefore, the Crown had failed to prove the charge beyond a reasonable doubt. Furthermore, in finding that the Appellant intended to frustrate the roadside test, and in finding that her explanations did not raise a reasonable doubt, the second branch of the W.D. test was effectively dealt with. [ 15 ] However, there are problems with the Trial Judge’s treatment of Cst. Bolduc’s evidence.

He noted that she was unfamiliar with some aspects of the manual, but found that she had sufficient knowledge and training to administer the test and interpret the results. [18] These comments are the only ones to address Cst. Bolduc’s credibility. These reasons do not clearly articulate why he preferred Cst. Bolduc’s evidence concerning the Appellant’s failed attempts to that of the Appellant. [ 16 ] In addition, the Trial Judge dealt with the issue of the battery and he indicated that, ‘I have no evidence before me of the effect of the battery running low during the procedure.

Would tests number two, or five, or six be any different? I simply don’t know’. [19] The Trial Judge erred in implying that it was the Appellant’s onus to show that the device was not working properly.

On the contrary, it was the Crown’s onus to show that the device was working properly. [20] [ 17 ] In circumstances where the accused has made unsuccessful attempts to provide a breath sample, the Crown may be required to prove that the screening device was in good working order. [21] As noted by the Ontario Court of Appeal in Danychuk , ‘these cases are founded on the theory that such proof may be necessary lest the evidence raise a reasonable doubt the unsuccessful attempt was due to a flaw in the device.’ [22] In my view, given that the first roadside device used registered a low battery, it was incumbent on the Crown to prove that the low battery would have had no effect on the operation of the machine prior to the ‘low battery’ message appearing.

As the Trial Judge stated, without such evidence, it was impossible to know if the error messages received were the result of the low battery or the Appellant’s behaviour. Moreover, the trial record shows that Cst. Bolduc never indicated whether either device – the first or the second roadside screening device – was in proper working order prior to their use that night. [23] Conclusion [ 18 ] Given the failure of the Trial Judge to adequately deal with the issue of Cst.

Bolduc’s credibility, and the reversal of the burden of proof regarding the operation of the roadside screening device, the appeal is allowed and a new trial ordered. ___________________________

Parfett J. Released : April 7, 2011 CITATION : R. v.Pinard, 2011 ONSC 2213 COURT FILE NO.: 09-2213 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – FANNY PINARD REASONS FOR DECISION Parfett J. Released : April 7, 2011