R. v. Melo, 2013 ONSC 4338

CITATION: R. v. Melo, 2013 ONSC 4338 COURT FILE NO.: 35/12 DATE: 20130625 ONTARIO SUPERIOR COURT OF JUSTICE RE: Her Majesty The Queen v. Jose Melo BEFORE : Mr. Justice K.L. Campbell COUNSEL : Rick Nathanson , for the Crown, respondent Stephen Price , for the accused, appellant HEARD : June 21, 2013 ENDORSEMENT [Summary Conviction Appeal] A. Overview [ 1 ] The appellant, Jose Melo, was tried by the Honourable Madam Justice L. Pringle of the Ontario Court of Justice on charges of impaired driving and operating a motor vehicle with over 80 mgs. of alcohol per 100 mls. of blood in his system.

The offences were alleged to have taken place in Toronto during the morning rush hour on October 12, 2010. The trial took place over a number of days and unfolded as a blended proceeding, with the parties leading their evidence simultaneously on the issues of liability and the alleged violations of the Charter of Rights . In the result, when the Intoxilyzer results of the appellant’s breath samples were excluded, the appellant was acquitted of the “over 80” charge. The appellant was, however, convicted of the impaired driving charge.

The appellant now appeals against this impaired driving conviction, advancing essentially two grounds of appeal, namely: (1) that the verdict of guilty on the impaired driving charge was an unreasonable one; and (2) that the trial judge erred in failing to stay the proceedings as a result of the Charter violation that took place when the appellant was strip searched by the police before being placed in a jail cell after he had provided his breath samples. B. The Background Facts 1.

The Appellant’s Erratic Highway Driving [ 2 ] The offences first came to light when a concerned citizen, Margherita Iacovone, on her way to work, observed the appellant’s white, half-ton truck “drastically swerving” on Highway 401, heading eastbound, in heavy traffic, around the intersection of Highway 427. He was almost hitting other cars, who were forced to quickly take evasive action to avoid collisions. She thought the appellant was either asleep or drunk, and she immediately called 911 to report her concerns. Thereafter, she followed the appellant for a distance of some 17 kms. As Ms.

Iacovone continued to follow the appellant, she watched him “roaming” the lanes without signaling, abruptly speeding up and braking, and swerving. 2. The Road-Side Stops by the Police [ 3 ] Eventually, after he turned northbound on Allen Road and then eastbound on Sheppard Avenue, the appellant was pulled over to the side of the road by the police – twice. These two road-side stops were made by Cst.

Andrew Parkin of the Toronto Police Service (TPS), who recognized the licence plate of the appellant’s vehicle as the same licence plate number that had been broadcast over the police radio regarding his erratic driving along Highway 401.

[ 4 ] When the appellant was first stopped by the investigating officer, gas was “gushing” out of the bed of his truck. Cst. Parkin had the appellant turn off his ignition, and he quickly secured the top of the gas container that had fallen over and was spilling the gas. Due to the pool of gasoline that had formed on the roadway, and the overpowering smell of the gas that had collected, the officer summoned the fire department to try to safely neutralize this spillage. As this was happening, the appellant exited his truck and just stood staring at the gas can in the back of his truck.

The appellant and the police officer had a brief conversation as they waited for the fire department by the back of the truck. The appellant explained that he was on his way to a landscaping job. While the appellant seemed to understand the officer, the appellant’s speech was slow. The officer also noticed that the appellant’s physical movements were slow. [ 5 ] Cst. Parkin then had the appellant return to the cab of his truck and provide him with his driver’s licence, vehicle ownership and insurance documents. The appellant complied with this request.

The officer then told the appellant to wait in his truck as he was going to issue him a ticket for driving with an insecure load in his truck. The appellant appeared to understand. Cst. Parkin agreed that, at that point in time, he did not have sufficient grounds to believe that the appellant was impaired by alcohol, and he communicated this opinion to the police dispatcher. [ 6 ] After the officer had returned to his police cruiser, communicated with the dispatcher, and began to write the ticket, the appellant started his truck and drove away. Cst. Parkin was “quite surprised” by this.

Only a short time had passed since he had spoken to the appellant, obtained his documentation, and told him to wait in his truck. As Cst. Parkin explained: “I’ve stopped thousands of vehicles and … I’ve never had anyone do that, give me all their information and then just drive away.” [ 7 ] When Cst. Parkin managed to catch up to the appellant and motion him to pull over again, the appellant stopped in a nearby gas station parking lot.

When the officer asked him what he was doing, the appellant tapped himself on the forehead and said: “I’m sorry, I forgot.” At that point, the officer could smell alcohol on the appellant’s breath. The appellant also admitted that he had consumed a couple of glasses of wine at around 1:00 a.m. [ 8 ] At that point, the officer demanded that the appellant provide a breath sample into an approved screening device, and the appellant accompanied the officer back to his police cruiser to provide this sample. Cst.

Parkin plugged the approved screening device into his car adaptor with a cord, and demonstrated to the appellant how to use the device. The officer then provided the appellant with a sealed mouthpiece, and asked him to unseal it and connect it to the device. The appellant appeared to understand these instructions. [ 9 ] During this time, Cst. Parkin noticed that the appellant seemed a little unsteady on his feet, and was swaying back and forth, even though he was wearing good running shoes and was standing on flat pavement.

The officer also noticed that the appellant’s eyes were “very glossy.” [ 10 ] The appellant unwrapped the mouthpiece and connected it to the screening device, which he held in both hands. However, before he could provide a breath sample into the device, the appellant stumbled backwards. In so doing, he pulled the device’s cord out of the adaptor in the police vehicle. This required the officer to plug the cord back into the adaptor. However, by the time Cst. Parkin was able to re-connect the cord to the adaptor and turn back toward the appellant, the appellant had removed the mouthpiece from the device. Cst.

Parkin then watched as the appellant blew into the mouthpiece he was holding in his right hand, while still holding the approved screening device in his left hand. After he finished blowing into the mouthpiece, the appellant examined the device, as if he were looking for a reading. The appellant was apparently oblivious to the fact that the mouthpiece into which he had been blowing was not connected to the device that would analyze his breath sample. 3. The Arrest [ 11 ] At that point, the investigating officer formed the opinion that the appellant’s ability to operate a motor vehicle was impaired by alcohol.

Cst.

Parkin testified that he based that opinion on all the circumstances including: (1) the original 911 call from the civilian motorist who had called in reporting an impaired motorist; (2) the fact that the appellant had been driving along spilling gas out of the back of his truck; (3) the conduct of the appellant, which the officer perceived as “very lethargic,” with the appellant “speaking very slowly;” (4) the appellant’s glossy eyes; (5) how the appellant just stood staring at the gas can when he was standing at the back of his truck during the first stop; (6) the fact that the appellant just drove away without his vehicle documentation just after having been advised that he was going to be issued a ticket; (7) his admission of alcohol consumption, confirmed by the odour of alcohol smelled by the officer; (8) the appellant’s backward stumble at the police cruiser without any apparent cause; and (9) the appellant’s blowing into the disconnected mouthpiece and expecting his breath to be analyzed by the approved screening device. [ 12 ] As a result of the formation of this opinion, Cst.

Parkin placed the appellant under arrest and advised him of his right to counsel pursuant to s. 10(

b) of the Charter of Rights . The appellant confirmed that he understood, and said that he wanted to call his lawyer. The officer then told the appellant that he would be charged with impaired driving and cautioned him about the making of any statements. Cst. Parkin then demanded that the appellant provide suitable samples of his breath for analysis. 4. The Breath Samples at the Police Station [ 13 ] The appellant was taken to the 32 Division police station. After their arrival at the station, it took some time to contact duty counsel, but the appellant was eventually able to consult privately with a lawyer.

While the appellant’s first language is Portuguese, a translator was not provided in order to permit the appellant to exercise his s. 10(

b) Charter rights more fully and easily. However, the appellant conversed with the police in English, did not express any difficulty with the English language, and did not request an interpreter. At trial, however, the appellant testified that he did not understand “very much” or “very well” what defence counsel had said to him during their consultation. [ 14 ] Ultimately, the appellant provided samples of his breath into an Intoxilyzer 8000C, an approved instrument, which revealed that at 11:51 a.m. and 12:18 p.m. respectively, the appellant had 240 and 250 mgs. of alcohol per 100 mls. of his blood.

In short, these breath samples revealed that the appellant had three times the legal limit of alcohol in his blood stream. 5. The Strip Search

[ 15 ] Given the appellant’s state of intoxication, and out of concern for his safety and that of the public, it was determined that the appellant would be held in custody until he was sober. Before the appellant was placed into one of the cells in the station, however, Det.Sgt. Dianne Wood, the booking-parading sergeant at 32 Division that day, and the officer who determined that the appellant would be kept in custody until he “sobered-up,” ordered that the 67-year-old appellant be strip searched. He had earlier been given a “pat- down” search at the road-side when he was arrested by Cst.

Parkin, and no weapons, contraband or other items of concern were discovered. Det.Sgt. Wood ordered the strip search nonetheless. [ 16 ] In her evidence at trial, Det.Sgt. Wood testified that she was aware of the TPS policy that strip searches not be conducted without reasonable grounds to believe that such an intrusive search was necessary. When asked for her reasonable grounds justifying the strip search of the appellant, Det.Sgt.

Wood explained that, as the 32 Division station is a “central lock-up” facility holding prisoners from a number of divisions, there were people coming and going from the cells regularly. Moreover, the physical layout of the cells in 32 Division was such that contraband and weapons could be passed between prisoners. Accordingly, it was her “personal policy” to “err on the side of safety” and caution and have such searches conducted as a matter of course whenever individuals were placed in the cells.

As Det.Sgt Wood explained, “if you’re going in the cells, you’re going to be [strip] searched.” This was her personal policy regardless of any individual factors or case-specific considerations. The officer conceded that, when the appellant was placed in the cells, he was the only prisoner there. [ 17 ] The strip search of the appellant took three minutes and, like the prior road-side, pat-down search, yielded no results. At trial, the appellant testified that he was “very embarrassed” by being strip searched, but he agreed that the officers were “respectful” of him throughout the process. 6.

The Testimony of the Appellant [ 18 ] At trial, the appellant testified that, on the day in question, his ability to drive a motor vehicle was not impaired by alcohol. He denied driving on Highway 401 in the erratic fashion described by Ms. Iacovone. According to the appellant, he did not nearly hit any guard rails or other vehicles, or cause other vehicles to take evasive action, honk their horns, or flash their lights.

His speed was similar to the other vehicles on the highway, which was “not much at all.” The appellant denied that there was any gas spillage from the back of his truck, and denied having any problem stumbling when ask to provide a breath sample at the road-side. The appellant testified that he had no difficulty with his speech, balance or walking – he was operating physically “at 100 percent.” He testified that he had only consumed two cups of wine the previous evening with his Thanksgiving dinner. C. The Reasons for Judgment by the Trial Judge 1.

Introduction [ 19 ] At the conclusion of the evidence, the Crown conceded that the police strip search of the appellant amounted to a violation of s. 8 of the Charter of Rights . The Crown also conceded that, given the comprehension difficulties the appellant demonstrated while in police custody, the appellant ought to have been provided with an interpreter in the exercise of his right to counsel under s. 10(

b) of the Charter . The Crown suggested that, in the result, the Intoxilyzer results of the appellant’s breath samples should be excluded under s. 24(2) of the Charter .

The Crown was, however, opposed to the stay of proceedings proposed by the appellant. [ 20 ] These concessions by the Crown left the parties, essentially, to advance their closing submissions on the more limited remaining questions of: (1) whether the impaired driving charge should be stayed as a result of the strip search performed on the appellant; and (2) whether the evidence established the impaired driving charge beyond a reasonable doubt. [ 21 ] At the conclusion of oral argument the trial judge reserved her judgment. Ultimately, Pringle J. delivered lengthy written Reasons for Judgment in this case.

See: R. v. Melo , 2012 ONCJ 765 . [ 22 ] In these Reasons for Judgment , the trial judge accurately outlined the important evidence and addressed the issues raised by the parties. Accepting the concessions of the Crown, the trial judge found that there had been violations of ss. 8 and 10(

b) of the Charter of Rights in this case. In the result, the trial judge excluded the Intoxilyzer results of the appellant’s breath samples, and acquitted the appellant of the “over 80” charge. The trial judge refused, however, to stay the proceedings on the impaired driving charge. Indeed, the trial judge found the appellant guilty of the impaired driving charge.

However, in an effort to provide the appellant with a further constitutional remedy for the violation of his Charter rights, Pringle J. sentenced the appellant to a nominal fine of $1, and prohibited the appellant from driving a motor vehicle for the minimum period of one year (subject to the ignition interlock program). 2. The Impaired Driving Conviction [ 23 ] With respect to the impaired driving charge, the trial judge concluded that the Crown had established the guilt of the appellant in relation to this charge beyond a reasonable doubt.

In reaching this conclusion, Pringle J. relied upon the erratic driving by the appellant, as observed by the concerned 911 caller, who followed the appellant for a significant period of time. After carefully analyzing her evidence, Pringle J. concluded that, while there may have been an “element of overstatement” in her testimony, her evidence was neither unreasonable nor unbelievable. Indeed, Pringle J. accepted her evidence, noting that her “very compelling and credible” description of the appellant’s erratic driving, which was recorded on her 911 call, showed that Ms.

Iacovone was simply a “concerned citizen” with a “genuine concern” about the erratic driving of the appellant.

Relying upon her testimony, Pringle J. concluded that the appellant’s driving that morning was “terrible,” and that he “posed a major risk to himself, and to others on the road.” [ 24 ] In finding the appellant guilty of impaired driving, the trial judge also relied upon the collective observations of the appellant that were made by the police officers who observed him on the day in question, including the appellant’s glossy eyes, slow speech and physical movements, the odour of an alcoholic beverage on his breath, his admission that he had consumed some wine the previous evening, his unsteadiness on his feet, and the very unusual conduct on the part of the appellant with the officer (i.e. the two vehicle stops and his blowing into the disconnected mouthpiece).

Pringle J. concluded that while the Crown’s case was not overwhelming, “the

evidence of impairment by alcohol [was] clear.” [25] The testimony of the appellant, which was essentially a blanket denial that he was in any way impaired by alcohol as he drovehis vehicle that morning, was rejected as incredible by the trial judge. More specifically, Pringle J., noting that the appellant’srecollection was uncertain, vague and poor, and simply did not fit with the other evidence in the case, stated: “I find that I do not believeit [the appellant’s evidence] nor does it leave me with a reasonable doubt.” 3.

The Charter Violations and the Constitutional Remedies for the Appellant [26] With respect to the strip search, the trial judge indicated that the law has been clear, at least since R. v. Flintoff (1998), (ON CA), 126 C.C.C. (3d) 321 (Ont.C.A.), that a strip search conducted on the basis of some “general policy” and notfounded upon the investigative circumstances of the particular case was unreasonable. Indeed, Pringle J. noted that, in R. v.

Flintoff, theroutine strip search of a suspected impaired driver was described as “outrageous.” Pringle J. accepted the Crown’s concession that thestrip search of the appellant was unreasonable, stating: There was absolutely no reason to strip search this 67 year old man who was polite, calm and cooperative throughout the investigation. Cst. Parkin was satisfied that Mr. Melo had no weapons and that he posed no safety concerns. Even Sgt. Wood agreed that Mr. Melowas a “long shot” to have weapons or contraband, and also accepted that even if other prisoners came into 32 division, Mr.

Melo was notlikely to be one of the people who was doubled up in a cell. It’s obvious to me that the strip search in this case had nothing to do with any grounds or concerns relating to Mr. Melo; rather the stripsearch was simply a matter of routine procedure for the officers. [27] Pringle J. concluded that the “personal policy” of Det.Sgt. Wood regarding strip searches was “completely contrary” to theofficial policy of the TPS and “flew in the face of law laid down by the Supreme Court of Canada” years ago in R. v.

Golden, 2001 SCC83, [2001] 3 S.C.R. 679. [28] As to the appropriate remedy for the breaches of ss. 8 and 10(

b) of the Charter, the trial judge accepted the Crown’sconcession that the exclusion of the appellant’s breath samples was warranted under s. 24(2) of the Charter. This exclusion of evidenceresulted in the acquittal of the appellant on the “over 80 charge.” The trial judge also concluded that it was appropriate to “recognizeand condemn” the seriousness of this Charter violation by reducing the monetary fine that would otherwise have been applicable to $1.

While admitting that this was a “somewhat contrived remedy,” Pringle J. noted that it compensated the appellant in some measure for theindignity suffered from the unnecessary strip search and also “sends the message to the police that this was serious, unconstitutionalbehavior that undermined the integrity of the administration of justice.” 4. Refusing to Stay the Proceedings [29] The trial judge refused, however, to stay the proceedings. In so doing, Pringle J. reviewed many of the cases that have dealtwith remedies for unconstitutional strip searches.

Citing specific cases involving strip searches conducted at 32 Division in 2007, 2008,and 2009, Pringle J. noted that, unfortunately, the practice of routine strip searches appears to have been prevalent at 32 Division for“some years.” Pringle J. then considered whether the practice had stopped after the strip search of the appellant.

Based on the evidencebefore her, the trial judge concluded that “it may be that there is [now] a better understanding” by the police at 32 Division “of their legalobligations relating to strip searches of short term detainees.” In this regard, Pringle J. noted that she could find no reported decision,coming after the appellant’s case, of a routine strip search being performed on someone being detained to sober up at 32 Division. [30] After quoting the principles articulated in R. v.

Zarinchang, 2010 ONCA 286, at paras. 57-61, as to when it is appropriate forcriminal proceedings to be stayed, Pringle J. considered the various factors that militated for and against a stay of proceedings in thiscase. [31] As to the factors that favoured a stay of proceedings, the trial judge noted: (1) the appellant was a 67-year-old man who posedno threat to have weapons or contraband, and who was very embarrassed by the process; (2) the strip search was clearly illegal andviolated long-established legal principles; (3) the strip search was contrary to official TPS policy; (4) the “personal policy” of Det.Sgt.Wood seemed to be a “routine” procedure for her in relation to the strip search of all short-term detainees; (5) this practice in 32 Divisionwas not new, as evidenced by decisions dealing with similar searches in 2007, 2008 and 2009; and (6) a stay would reinforce judicialcondemnation of the practice of strip searches, which has repeatedly undermined the integrity of the administration of justice in the past. [32] As for the factors that weighed in favour of the public interest and against a stay of proceedings, Pringle J. noted: (1) thesearch of the appellant was “entirely severable” from the evidence of impairment (i.e. the observations of Ms.

Iacavone and Cst.

Parkin),as the search did not take place until hours after the events that led to the appellant’s arrest; (2) the appellant’s impaired driving involveda course of conduct that posed a “major risk” to the appellant and the public on one of Canada’s busiest highways; (3) the appellantshowed “little insight” into the danger he presented and, if he is permitted to continue to drive without sanction, he will “continue to posea risk to himself and to others;” (4) the force of a message to the police at 32 Division is now questionable given that the search tookplace in 2010 and there is “some indication that there is now a better understanding of the law” by the police officers there; and (5) otherremedies are available to address the illegal strip search. [33] Finally, after outlining these competing considerations and factors, Pringle J. concluded that this was not one of the “clearestof cases” requiring the imposition of a stay of proceedings.

More specifically, Pringle J. stated: Considering and balancing those factors, I find I cannot say that this is one of the “clearest of cases” that requires a stay. While I agreewhole heartedly with the importance of sending the message to police to prevent further illegal strip searches … , the need for themessage at the present time is not quite so obvious in this case. Moreover, this case engages the public interest in a more profound waythan some of the other cases, in light of the risk posed by Mr. Melo’s impaired driving. In my view, a stay would be a disproportionatewindfall from Mr.

Melo, and would fail to protect the public interest.

D. Analysis 1. The Reasonableness of the Impaired Driving Verdict [34] The appellant contends that the verdict reached by the trial judge on the charge of impaired driving is unreasonable. Idisagree. [35] The learned trial judge delivered lengthy, careful and persuasive Reasons for Judgment at the conclusion of this case. In herReasons, Pringle J. fully and accurately considered all of the relevant evidence and articulated and applied the operative legal principles.

During the course of the trial, Pringle J. did not admit any inadmissible evidence, nor did she employ any evidence for improperpurposes in her Reasons for Judgment. She did not misapprehend any significant piece of evidence, nor did she fail to consider anyrelevant aspect of the evidence. She only rejected the testimonial denials of the appellant after careful consideration. It is apparent fromher Reasons that Pringle J. clearly understood and applied the correct burden of proof.

In my view, given the evidence, her ultimateconclusion that the appellant was guilty of the offence of impaired driving is a perfectly reasonable verdict which enjoys the support ofthe evidence. In short, I simply see no proper legal basis upon which to interfere with the verdict reached by the trial judge. [36] The arguments that were advanced on behalf of the appellant amounted to an invitation for me to retry the case, and reach adifferent conclusion than the one reached by the trial judge with respect to the charge of impaired driving.

These arguments, withrespect, ignore the proper scope of appellate review in connection with the reasonableness of a verdict. [37] The scope of appellate review under s. 686(1)(a)(

i) of the Criminal Code, R.S.C. 1985, chap. C-46, which is made applicableto

summary conviction appeals by s. 822(1) of the Code, prohibits a fresh, de novo assessment of the evidence wherein the appellatecourt merely reaches its own conclusions based on its own consideration of the evidence and then substitutes its view for that of the trierof fact. The Supreme Court of Canada has long prohibited such an approach to appellate review. For example, in R. v.

Corbett, (SCC), [1975] 2 S.C.R. 275, at pp. 278-279 and 282, Pigeon J., delivering the judgment of the majority of the court, afteroutlining the governing standard of review, observed as follows: This cannot be taken to mean that the Court of Appeal is to substitute its opinion for that of the jury. The word of the enactment is“unreasonable”, not “unjustified”.

The jurors are the triers of the facts and their finding is not to be set aside because the judges inappeal do not think they would have made the same finding if sitting as jurors. * * * * * I do not read the above as meaning that the duty of the Court of Appeal is to reach its opinion on the basis of what its members think theywould have decided if sitting as the jury so that, if they are not convinced that they would have rendered the same verdict, they are tofind it unreasonable. If that is what the learned judge meant, then I must disagree with him because that is not the proper test.

Aspreviously noted, the question is whether the verdict is unreasonable, not whether it is unjustified. The function of the court is not tosubstitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonablyhave rendered. [emphasis added] [38] In subsequently clarifying the nature of the permissible scope of appellate review under s. 686(1)(a)(

i) of the Criminal Codein R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, the Supreme Court of Canada again expressly affirmed the principle thatappellate courts are not to substitute their view for that of the trier of fact. In delivering the judgment of the court, McIntrye J. stated, atp. 186: The function of the Court of Appeal, … goes beyond merely finding that there is evidence to support a conviction. The Court mustdetermine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably haverendered.

While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re-examine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based oncircumstantial or direct evidence. [emphasis added] [39] This same principle has been confirmed on many other occasions. For example, in R. v.

Burns, (SCC),[1994] 1 S.C.R. 656, McLachlin J., as she then was, delivering the judgment of the court, articulated the principle as follows, at para. 14: In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only forthe purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier offact could reasonably have reached the conclusion it did on the evidence before it … Provided this threshold test is met, the court ofappeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [citations omitted – emphasis added] [40] Most recently, in R. v.

H.(W.), 2013 SCC 22, Cromwell J., delivering the judgment of the court, articulated the scope ofappellate review under s. 686(1)(a)(

i) of the Criminal Code as follows, at paras. 27-28: Appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries. On one hand, the reviewingcourt must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the

evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt basedon its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubtbased on its review of the record. On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the questionof whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.

Rather,the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) andconsider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39(emphasis added).

Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably haverendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’sconclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40. [emphasis added] [41] Accordingly, properly understood, the responsibility of the appellate court is to determine, on the whole of the evidenceadduced at trial, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

Thisprocess requires more than simply determining whether there is any evidence to support the verdict. It requires the appellate court tothoroughly review, analyze and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens ofjudicial experience, whether judicial fact-finding precludes the conclusion reached by the trier of fact. At the same time, this processdoes not permit the appellate court to simply retry the case, or give effect to any vague unease, or any lurking or reasonable doubt it mayhave based on its own review of the written record. See also: R. v.

W.(R.), (SCC), [1992] 2 S.C.R. 122, at pp. 129-132;R. v. François, (SCC), [1994] 2 S.C.R. 827, at pp. 835-838; R. v. Biniaris, 2000 SCC 15, [200] 1 S.C.R. 381, at para. 24,38, 40, 42; R. v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 6, 28-29; R. v. R.(J.S.) (2012), 2012 ONCA 568 , 112 O.R.(3d) 81 (C.A.) at para. 69-72. [42] Applying this governing standard of appellate review in the circumstances of the present case, I am convinced that the verdictreached by the trial judge is a reasonable one that is supported by the evidence, especially given the following: • The Testimony of the Concerned Citizen: Ms.

Iacovone provided compelling evidence as to how she observed the appellant’swhite, half-ton truck “drastically swerving” on Highway 401 as she followed him for a distance of some 17 kms. She described anumber of near accidents as the appellant roamed across the lanes of traffic without signaling, and abruptly speeding up and braking, andswerving. She described the evasive action that other motorists were required to take to avoid colliding with the appellant’s vehicle. Moreover, Ms.

Iacovone was an independent witness, without any prior contact with the appellant, and without any apparent motive tofabricate her evidence. She simply encountered the appellant’s vehicle as she was on her way to work one morning, but was soconcerned about his driving that she felt compelled to call 911. In my view, it was open to the trial judge to accept the essentialsubstance of her evidence, and ultimately conclude that she had, in fact, witnessed the dangerous driving of an impaired motorist.

In hercareful review of this evidence, the trial judge noted that there may have been an element of overstatement in the evidence of Ms.Iacovone, but Pringle J. accepted it nevertheless. On the evidence, the trial judge was justified in reaching this conclusion. • The Indicia of Impairment Observed by Cst. Parkin: Over the course of his time with the appellant, Cst. Parkin made a seriesof observations that, collectively, strongly suggested that the appellant’s ability to operate a motor vehicle was impaired by alcohol.

These observations included all of the following: (1) when the appellant was first stopped, he was unaware of the gas that was “gushing”out the bed of his truck; (2) when the appellant first exited his vehicle he just stood staring at the gas can in the back of his truck; (3)when he engaged in conversation with Cst.

Parkin, the appellant’s speech seemed very slow; (4) the appellant’s physical movementsseemed slow and very lethargic; (5) after providing the officer with his vehicle documentation, and being told to wait in his truck for aticket, the appellant inexplicably just started his truck and drove away; (6) the appellant had the odour of an alcoholic beverage on hisbreath; (7) the appellant admitted consuming some alcohol the previous evening; (8) the appellant was observed to be unsteady on hisfeet and swaying back and forth; (9) the appellant’s eyes were “very glossy;” (10) for no apparent reason the appellant stumbledbackwards when he went to blow into the approved screening device; and (11) while shown how to blow into the approved screeningdevice by Cst.

Parkin, the appellant disconnected the mouth piece from the device and then blew into the mouth piece as if his breathsample would somehow be analyzed in the detached device. In my view, it was open to the trial judge to accept this body of evidenceand to conclude that it revealed “clear” evidence of alcohol impairment which convinced her beyond a reasonable doubt as to the guilt ofthe appellant. See: R. v.

Stellato (1993), (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380 (C.A.); Affirmed: (SCC), [1994] 2 S.C.R. 478. • The Incredible Testimony of the Appellant: The blanket testimonial denials by the appellant – that his driving was normal,that there had been no gas spilling from his truck, that he did not stumble when asked to provide a road-side sample of his breath, that hisspeech, balance and walking were all “100 percent,” and that he had only consumed a couple of cups of wine the previous night withdinner – was inherently incredible and wholly inconsistent with the testimony of all of the other witnesses.

In my view, the trial judgewas justified in rejecting the appellant’s evidence as incredible and finding that it did not raise any reasonable doubt as to his guilt inrelation to the crime of impaired driving. In this regard, the trial judge properly applied the decision in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. 2. Refusing to Stay the Proceedings [43] The appellant argued that the trial judge erred in failing to stay the proceedings against the appellant in relation to theimpaired driving charge.

I disagree. [44] The outcome of the appeal on this issue depends on whether the trial judge misdirected herself in relation to the law,committed some reviewable factual error, or reached a decision that is so clearly wrong as to amount to an injustice. That is thedeferential standard of appellate review that must be applied in relation to the decision of the trial judge not to stay these proceedings. This point was again confirmed by the Supreme Court of Canada in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, at paras. 17-19,where Fish J., delivering the judgment of the court, stated:

It is well established that a trial judge’s order under s. 24(1) of the Charter should be disturbed on appeal “only if the trial judgemisdirects himself or if his decision is so clearly wrong as to amount to an injustice”: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, atpara. 117; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391, at para. 87. That this is the appropriate standard of review was unanimously reaffirmed by the Court, citing Regan, in R. v. Bjelland, 2009 SCC 38,[2009] 2 S.C.R. 651 (Rothstein J., at para. 15; Fish J., at para. 51).

Speaking for myself and Justices Binnie and Abella, dissenting in theresult, I elaborated as follows on the agreed standard of review: On an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, once an infringement has been established, the trialjudge must grant “such remedy as [is] appropriate and just in the circumstances”. The remedy granted must vindicate the rights of theclaimant, be fair to the party against whom it is ordered, and consider all other relevant circumstances.

Appellate courts may interferewith a trial judge’s exercise of discretion only if the trial judge has erred in law or rendered an unjust decision. This is particularly true ofremedies granted by trial judges under s. 24(1) of the Charter, which by its very terms confers on trial judges the widest possiblediscretion.

Finally, appellate courts must take particular care not to substitute their own exercise of discretion for that of the trial judgemerely because they would have granted a more generous or more limited remedy. [Emphasis in original; para. 42.] Accordingly, the outcome of this appeal depends on whether the trial judge misdirected himself in law, committed a reviewable error offact or rendered a decision that is “so clearly wrong as to amount to an injustice”.

In my view, his decision suffers from none of thesefatal flaws. [45] Having reviewed the evidence and the detailed Reasons for Judgment of the trial judge, I am unable to conclude that the trialjudge in anyway misdirected herself as to the governing legal principles, committed any reviewable factual error, or reached a conclusionthat is so clearly wrong as to amount to an injustice. More particularly in this regard: • Gravity of Charter Breach: The trial judge fully understood the seriousness of the Charter breach that was entailed by theneedless and illegal strip search of the appellant.

Pringle J. noted that the appellant had already been subjected to a pat-down search atthe roadside which had demonstrated that the appellant possessed no weapons or contraband. The trial judge also observed that the 67-year-old appellant had no criminal record, had been fully cooperative with the police and raised no individualized safety concerns. Pringle J. recognized that the only reason for the strip search was the unfortunate, blanket “personal policy” of Det.Sgt. Wood, that allpersons going into the cells were to be strip searched.

The trial judge also commented that, notwithstanding the brief (three minutes)duration of the search, it was “very embarrassing” for the appellant. • New Era for 32 Division: The trial judge accurately understood, and properly relied upon, the evidence put before her – bothduring the trial, and subsequently by way of an agreed statement of facts – that suggested that the officers at 32 Division may now havea “better understanding” of their “legal obligations relating to strip searches of short-term detainees. In this regard, Pringle J. noted thatStaff Sgt.

Coulson, who was, at the time of trial, in charge of 32 Division, understood that all strip searches must be evaluated on a case-by-case basis in accordance with the TPS policy, and must be undertaken only upon reasonable and probable grounds, and only when“absolutely necessary.” In his trial evidence, Cst. Peters, who assisted Cst. Parkin in processing and searching the appellant, also deniedthat it was the “general practice” at 32 Division to strip search everyone arrested and put into a cell.

As the trial judge observed, theneed for a strong judicial “message” to the police of 32 Division about strip searches was no longer as obvious as it had been in pastyears. • Applicable Legal Principles: The trial judge applied the correct legal principles in determining whether or not the proceedingsagainst the appellant should be stayed. Pringle J. quoted at length from the decision of the Court of Appeal for Ontario in R. v.Zarinchang, at paras. 57-61, in this regard. See also: R. v.

Y.(N.) 2012 ONCA 745, at paras. 142-147. • Relevant Factual Considerations: The trial judge properly articulated the relevant factual considerations that needed to bebalanced in determining whether or not the proceedings should be stayed.

Ultimately, the trial judge concluded that, in all of thecircumstances of this case, this was not one of the “clearest of cases” that required that the criminal proceedings be stayed. • Other Charter Remedies: In reaching her conclusion that the circumstances of this case were not such as to require that theproceedings be stayed, Pringle J. took into account that the appellant was the recipient of other constitutional remedies, including: (1) theexclusion of the Intoxilyzer results of his breath samples that led to his acquittal on the “over 80” charge; (2) the reduction of hismonetary fine to a nominal amount of $1; and (3) the imposition of the minimum driver’s licence s suspension.

As the trial judge observed, to stay the proceedings against the appellant would provide him with a “disproportionate” constitutional “windfall.” [1] • The Strong Public Interest: The trial judge correctly concluded that this case profoundly engaged the public interest by virtueof the danger caused to the public by the dangerous, impaired driving of the appellant. To stay the impaired driving proceedings againstthe appellant would ignore the public danger posed by the appellant. E. Conclusion [46] In the result, the appeal against conviction is dismissed.

An order shall issue accordingly. ___________________________ Kenneth L. Campbell J.

Released: June 25, 2013