) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 41

CITATION: HMQ v. Brown, 2013 ONSC 41 COURT FILE NO.: 155/10 DATE: 20130108 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – JEFFREY BROWN Appellant ) ) ) ) ) ) ) ) )) Laurie Hamilton, for the Respondent R. Graham Zoppi, for the Appellant ) ) ) HEARD: December 20, 2012 McWatt J. REASONS FOR JUDGMENT [1] On October 26, 2010, Justice Cavion of the Ontario Court of Justice convicted the appellant of Impaired Driving contrary tos. 253(1)(

a) and Refusing to Provide a Breath Sample contrary to s. 254(5) of the Criminal Code. [2] The appellant appeals those convictions on the basis of alleged errors by the trial judge that he: (1) failed to give sufficient reasons for rejecting the motions for a directed verdict and for the impaired conviction; (2) misapprehended portions of the evidence on the impaired charge; (3) failed to articulate how the mens rea on the refusal charge was proven; and (4) did not apply the “last chance” doctrine in the refusal charge.

Sufficiency of Reasons [3] The appellant complains that the trial judge’s reasons, in general, fail to explain why he was convicted. They do not explainthe result of the trial, provide public accountability for the decision nor permit effective appellate review [R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 (S.C.C.) at para 15-16; R. v. Shephard, 2002 SCC 26 , [2002] S.C.J. No. 30 (S.C.C.) at para 28]. [4] In this case, the trial judge’s reasons were sparse. Nonetheless, the reasons for the convictions were ample and clear fromthe record.

Motion on Identification [5] The identity of the appellant as the driver was not an issue raised by the defence in any meaningful way through theevidence. The only time the issue was raised was at a motion for a directed verdict at the end of the Crown’s case because neither of theCrown’s police witnesses had pointed to the appellant in court to identify him as the accused. [6] The officers had referred to the appellant as the accused during their testimony. Counsel for the defence referred to theaccused as “my client” and “Mr. Brown” during cross-examination of the arresting officer.

[7] His Honour summarily dismissed the motion because there was enough evidence to do so. Motion to Quash Information [8] I agree with the Crown’s contention that, although the appellant initially raised the issue that the Information had not beenconfirmed pursuant to

section 508 of the Criminal Code, he provided no jurisprudence to support his motion to quash the document. Thetrial judge asked that some be provided without deciding the matter. Counsel never raised the issue again. This is not a matter wherethere were insufficient reasons as none had to be provided. The motion appears to have been abandoned. Misapprehension of the Evidence [9] The appellant alleges the trial judge misapprehended the evidence on the impaired charge, generally, by placing too muchweight on what counsel submits were only “slight variations from the norm” in acceptable driving.

The appellant also contends that thetrial judge erred by considering his behavior in the breath room in relation to his credibility and his sobriety. [10] Finally, the appellant points to the trial judge’s specific findings that he “stumbled” at the scene of the arrest when thearresting officer specifically said otherwise. [11] The trial judge was not mistaken as to the substance of material parts of the evidence which were essential in his reasoningprocess resulting in a conviction on the impaired charge [R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.),at p. 538-541].

The fact that he used the word “stumbling” several times when the evidence was “unsteadiness” was not material in thesecircumstances. There was an abundance of other evidence of impairment which could support the trial judge’s decision to convict on thecharge. [12] He was also permitted to use and did use the physical indicia of impairment at the roadside and the odd behavior there todetermine whether the appellant was impaired at the time of driving. Other behaviour in the breath room was also consistent withimpairment and the trial judge appropriately used it to assess Mr. Brown’s sobriety and his credibility.

Mens Rea Regarding the Refusal to Provide a Breath Sample [13] The trial judge found as a fact that the appellant was not suffering from a panic attack as he claimed in his testimony. Hefound that: “he simply tried as best he could to prevent the test form being executed. The video, even more than the synopsis of it, shouts out veryeloquently that Dr. Brown was indeed as one officer said, near the end, ‘playing games’.” [14] As a result, he was satisfied that the mens rea of the offence was proven beyond a reasonable doubt. [15] I see no error in this finding of fact on the evidence before the trial judge.

And his reasons more than explain the resultingconviction. “Last Chance” Doctrine Regarding the Refusal Charge [16] There was no evidence the appellant had a “change of heart” about providing a sample of his breath after having been chargedwith refusing to do so [R. v. Chance, [1997] O.J. 4939 (Ct. Jus. Prov. Div.); R. v. Domik, [1979] O.J. No. 1050 (H.C.J.) aff’g 4 M.V.R.[iii(C.A.)]. [17] The appellant did not make one attempt to provide a sample of his breath in spite of being offered repeated chances.

He wasuncooperative throughout his dealings with the police officers and, as the trial judge appropriately found, “playing games” with them. There was no reason for the trial judge to find that the appellant ever accepted the breath demands at any point. This doctrine had noapplication to the case. [18] As a result of these reasons, the appeal is dismissed. McWatt J. Released: January 8, 2013 CITATION: HMQ v. Brown, 2013 ONSC 41

COURT FILE NO.: 155/10 DATE: 2013018 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – JEFFREY BROWN Appellant REASONS FOR JUDGMENT McWatt J. Released: January 8, 2013