)) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 6533

CITATION : R. v. Schmidt, 2013 ONSC 6533 COURT FILE NO.: 70/12 DATE: 20131021 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Respondent – and – THOMAS SCHMIDT Appellant )) )) )) )) ) ) ) ) ) ) ) ) ) Jason Gorda, for the Crown Norm Stanford, for the Appellant HEARD: May 17, 2013 TROTTER J. INTRODUCTION [ 1 ] On May 10, 2012, after a trial before the Honourable Justice Bruce Young of the Ontario Court of Justice, the appellant was convicted of the offence of being in the care or control of a motor vehicle while impaired, contrary to s. 253(1) (

a) of the Criminal Code . [1] [ 2 ] It was alleged that the appellant consumed many beers (10 to 11, by his own estimation) and then drove his mother’s car into a tree in the middle of the night. The appellant testified that his acquaintance, Jesse, was driving and left immediately after the crash. The trial judge rejected the “Jesse” story and found Mr. Schmidt guilty. [ 3 ] Mr. Schmidt appeals, arguing that the trial judge made numerous errors in the manner in which he dealt with the evidence. For the following reasons, the appeal is allowed. The trial judge’s reasons failed to address a couple of key aspects of the evidence.

SUMMARY OF THE FACTS (

a) Introduction [ 4 ] There were a number of facts that were not in issue at the trial. It was admitted that a car belonging to the appellant’s mother was driven into a tree. It was conceded that the appellant was impaired and that his blood/alcohol concentration was “over 80.” [2] [ 5 ] There were two routes to liability that were tested at trial. The principal one was that the appellant was the driver of the car. He said that he was not. He said that he was a passenger and at some point lost consciousness. However, the appellant was observed in

the driver’s seat of the car shortly after the crash, which the Crown said established care and control of the vehicle. The appellant had no recollection of how he got there. On this aspect of liability, he relied on the defence of automatism, based on a concussion. (

b) At the Scene [ 6 ] Candace McDowell and Darrin Emond were in a nearby apartment at the time and heard the crash. Mr. Emond called 911 within a minute and the two went out to the site of the crash. Mr. Emond originally said the crash took place 20 yards from his building. He then agreed it was quite a bit further. Photographs show that it was considerably further. Mr. Emond said that Ms. McDowell got to the car before he did. He varied in his estimate of time, saying it might have been a minute or between 10 to 20 seconds. There was no one in the car when he arrived. While Mr.

Emond thought the appellant was upset from having been in the accident, he did not appear intoxicated. [ 7 ] Ms. McDowell’s evidence was different in some important respects. She said it took them about two minutes to get to the car. It would have taken them a minute to a minute and a half to get outside the building, a period of time during which they would not have been able to see the car. It was suggested at trial that it was during this interval that Jesse left the scene. Ms. McDowell opened the driver’s side door and saw the appellant in the driver’s seat. Ms. McDowell testified that, at the time, Mr.

Emond was “10, 15 feet behind me – not far.” This is at odds with Mr. Emond’s testimony that he never saw the appellant in the car. [ 8 ] Ms. McDowell undid the seatbelt, which allowed the appellant to get out of the car. He seemed intoxicated or confused to Ms. McDowell. He was “stumbly”, and not firm on his feet. [ 9 ] A peculiar aspect of the case is that when the police arrived, the driver’s side seatbelt was buckled. Ms. McDowell did not do it, nor did the officer on the scene.

How the seatbelt became re-buckled remains a mystery. [ 10 ] When a police officer arrived on the scene, the appellant was unsteady on his feet and smelled of alcohol. When the officer asked him for his wallet, the appellant opened the passenger side door and fell into the vehicle. His wallet was on the floor of the car, on the passenger side. The officer testified that there were two boxes of wine on the passenger side. At trial, the officer was sure that they were on the seat; his notes suggest otherwise.

The officer agreed that the items could have shifted around as result of the collision. [ 11 ] Significantly, the officer testified that he saw what appeared to be seatbelt markings on the front of the appellant’s light coloured shirt. [3] He initially testified that they went downward from the left shoulder. However, he was shown photos which depicted them coming down from the right shoulder. He agreed that they were markings that were “more consistent with” someone sitting in the passenger seat.

This theme was explored in the following excerpt from the officer’s cross-examination: Q: And you’d agree that the markings are much more suggestive….of having been caused by the passenger’s seatbelt as opposed to the driver’s seatbelt. A: The indications indicate, yes. Q: So I’d suggest to you that if you had perceived them correctly, you would have used this as a factor to suggest to you that my client was in the passenger seat when the accident occurred and not the driver’s seat. I mean logically that would have to be the case.

A: Logically, yes. [ 12 ] The officer also confirmed that there was a “spider” crack in the glass on the driver’s side of the front windshield. However, the officer would not agree that it was likely caused by a driver not wearing a seatbelt. (c) “Jesse” [ 13 ] The appellant testified and told his story about Jesse. The appellant went to play golf that day and then returned home, where he consumed about 6 beers. At 10:00 p.m., he took public transit to a movie theatre, where he usually went alone. He saw his friend Jesse standing in line.

The appellant had seen Jesse at the movies about 15 to 20 times over the previous 10 or 11 months. Jesse often went to the movies by himself. The two men bought tickets to the same movie. [ 14 ] The appellant had brought two beers with him to the movie theatre. He drank them. After the movie, the two men went back to the appellant’s place, where the appellant drank more beer. They decided to go for food. They got into the appellant’s mother’s car. Jesse was the driver. The appellant testified that, shortly after they had left his place, he put his head down to change the radio.

That was the last thing that the appellant could recall until he left the police station. [ 15 ] The appellant had no memory of his behaviours or actions at the scene and at the police station. When he left the police station, he had to return because he could not remember how to get home and needed directions. [ 16 ] As for Jesse, the appellant testified that he had been unable to locate him since the incident, despite having returned to the same movie theatre from time to time.

Moreover, he said that he did not really know much about Jesse, not even his last name. [ 17 ] The appellant testified that the wine boxes on the floor of the car did not belong to him. He said that they had been on the floor of the car shortly before the crash. The trial judge mistakenly found that the appellant said that he did not see the boxes on the floor. The appellant’s mother, Tracy Mills, said that the wine boxes belonged to her. Ms. Mills testified that she traveled in the passenger seat with the wine boxes on the floor as she returned from the cottage earlier that day. (

d) Automatism [ 18 ] Ms. Mills spoke to her son while he was at the police station. He seemed confused and asked that she repeat directions to him about how to get home. When he did eventually arrive home hours later, he looked “white as a ghost.” He had a bruise over his left eye

that looked like a “goose egg.” Ms. Mills thought he had a concussion. Instead of seeking medical treatment for her son, she decided tomonitor him to ensure that he did not become drowsy or start to vomit. [19] Dr. Julian Gojer, a forensic psychiatrist, testified on behalf of the appellant. In essence, his testimony was that the appellant’sbehaviour after the accident was consistent with non-insane automatism, caused by a blow to his head. He also testified that intoxicationby alcohol would have contributed to the observations of those that dealt with the appellant after the collision.

Because the appellantappeared more steady on his feet and was not slurring at the police station (when compared to the observations made of him at the sceneof the crash), Dr. Gojer felt that this quick recovery was more indicative of the earlier behaviour being caused by a head injury (ratherthan intoxication). While Dr. Gojer attributed the appellant’s behaviour to a head injury, he could not rule out the effects of alcohol. ANALYSIS [20] The appellant points to a number of shortcomings in the manner in which the trial judge dealt with the evidence.

He arguesthat the trial judge misapprehended the evidence in a number of materials ways. The appellant also contends that the Reasons forJudgment are inadequate in a number of respects, including the failure to explain why key defence evidence (such as the appellant’stestimony and that of Dr. Gojer) was ultimately rejected. [21] On a general level, and with respect, the reasons of the trial judge are problematic. After a trial that went over five partialcourt days, the trial judge reserved judgment. About a month later, he gave oral reasons. The reasons are just over 46 transcript pages inlength.

They contain a detailed and sequential (i.e., examination-in-chief/cross-examination) review of evidence of each witness, thenthe submissions of counsel. This is followed by some lengthy quoted passages from cases concerning automatism (i.e., R. v. Stone (1999), (SCC), 134 C.C.C. (3d) 353 (S.C.C.) and R. v. DeVingt (2001), 13 M.V.R. (4th) 131 (Ont. S.C.J.)). The trialjudge’s analysis of the relevant issues in the case does not begin until the very end of page 44.[4] [22] Having already identified and summarized the principles in R. v.

W. (D.) (1991), (SCC), 63 C.C.C. (3d) 397(S.C.C.), the trial judge addressed the issue of whether it had been beyond a reasonable doubt that the appellant was the driver. Hisanalysis is captured in the following passage of his reasons: In relation to the charge of impaired operation of a motor vehicle, the Court gives significant weight to the testimony of …DarrinEmond and Candace McDowell, and the Court would infer that it is a reasonable inference, from particularly Ms. McDowell’stestimony, that the accused was the driver and operated the motor vehicle just before the collision with the tree.

And in relation to Jesse, I agree with the Crown’s submission that Jesse is a fiction. I do not believe that Jesse was the driver for onemoment.

The accused, although there is no burden on an accused person to prove anything in a criminal case, the story about Jesse hasno sense of reasonableness to it whatsoever; and the fact that the accused does not know Jesse very well and yet lets him drive hisvehicle and that Jesse cannot be found or located in any way, shape or type when this case has gone on for as long as I said at….thebeginning of this judgment, just does not make any sense, and it is not believable, and I do not believe the accused when he said he wasnot driving. He was driving.

He drove into the tree and he caused the accident; and the evidence of Darrin Emond and CandaceMcDowell are circumstantial evidence about it. So the accused’s testimony on that regard does not cause me to have any reasonabledoubt about it and the evidence of the two civilians who came to the scene….they convince me beyond a reasonable doubt that theaccused was the driver at the relevant time.

Nobody else was seen there at all. [emphasis added] This was the trial judge’s entire analysis of Count #1 (on which the appellant was found guilty). [23] The trial judge then considered automatism and, in a single paragraph, simply concluded that it had not been established on abalance of probabilities. I will return to this issue below. [24] In addition to failing to explain why he rejected the evidence of the appellant, and failing to say whether he accepted orrejected the evidence of Dr. Gojer, the trial judge failed to address a couple of important pieces of evidence that were potentiallyexculpatory.

The most important of which was the evidence of the officer on the scene and the appellant’s mother who both observedseatbelt markings on the appellant’s shirt. As noted from the testimony reproduced in paragraph 11 above, the markings would appear tohave been made by the passenger side seatbelt. [25] The seatbelt markings are mentioned by the trial judge in his review of the evidence.

This evidence is also addressed duringthe trial judge’s review of the submissions of counsel in the following passage: And as far as the shirt is concerned – it is not conclusive, because these marks are on the shirt, that the accused was not the driver at therelevant time. The marks could have been there from who knows when the Court does not have to accept that these marks were causedas a result of this crash. [emphasis added] [26] Counsel for the appellant argues that it is unclear whether this passage is an expression of the trial judge’s conclusions on thisissue or whether it is merely a

summary of the Crown’s position. If it is the former, the appellant argues that the trial judge explicitlyreversed the burden of proof (i.e., “it is not conclusive”): see R. v. Dore (2004), (ON CA), 189 C.C.C. (3d) 526 (Ont.C.A.). If it is the latter, the trial judge failed to address this important evidence at all in his analysis (also leaving the lingering concernthat the Crown’s position might have been implicitly adopted). [27] As I read this passage from the trial judge’s reasons, it reflects a

summary of the Crown’s position on the issue. This leadsme to conclude that he failed to analyze this evidence himself. On appeal, the Crown argues that there were a number of problems withthe seatbelt markings evidence. For instance, there was no opinion evidence as to the properties of the fabric of the seatbelt or the shirtand the circumstances which would have been necessary for this transfer to have occurred. These are good points,[5] but the purportedfrailties of this evidence were put to the trial judge during submissions.

However, because this important piece of exculpatory evidencewas not analyzed by the trial judge, I have no way of understanding how he dealt with it, if at all. In the circumstances, this error is

sufficient to set aside the conviction: see R. v. Clouthier, 2012 ONCA 636. [28] Moreover, the trial judge placed great weight on the evidence of Ms. McDowell and Mr. Emond. He dealt with thetestimony of the two of them together. However, there were aspects of their testimony that required that they each be dealt withindividually. There were important discrepancies on the issue of timing in terms of how long it took them to reach the scene.

The trialjudge appears to have overlooked the period of time during which the two proceeded from the apartment and through the building to getoutside, a time when they were not able to see the appellant’s car and what was going on around it. Moreover, while Ms. McDowell saidthat Mr. Emond was right behind her, he claimed never to have seen the appellant in the car, while she conversed with the appellant andassisted him out of the car. [29] This leads to another peculiarity in the evidence. Ms. McDowell testified that she unbuckled the appellant’s seatbelt to allowhim to get out of the car.

When the police took photos of the vehicle after the fact, the driver’s side seatbelt was buckled up. Ms.McDowell denied doing this. The main officer on the scene denied buckling the seatbelt. It would make little sense for anyone tobuckle the seatbelt in the circumstances. The trial judge failed to address this evidence in his analysis. It is well accepted that a trialjudge need not address every piece of evidence that is adduced. This seatbelt evidence may well fall into this category. However, giventhe discrepancies between Ms. McDowell and Mr.

Emond, their evidence required a more probing examination, especially since itcarried the entire load of the Crown’s case. [30] In conclusion, and with respect, the learned trial judge’s failure to address the seatbelt markings evidence, and the manner inwhich he dealt with the evidence of Ms. McDowell and Mr. Emond, leads me to conclude that his reasons were inadequate in that hefailed to address key issues in this case. As the Court of Appeal held in the recent decision of R. v. Burnie (2013), 2013 ONCA 112, 294 C.C.C. (3d) 387 (Ont.

C.A.), at p. 403: Nonetheless, in a case in which the main thrust of the defence is directed at eliciting conflicting evidence from the complainants and theeyewitnesses to the alleged offences, it was incumbent on the trial judge to have at least considered whether those conflicts orinconsistencies raised a reasonable doubt about the evidence supporting a conviction. From his reasons, particularly the culminatingparagraph, which is the heart of the decision, it is not apparent that he did so.

While we might assume he did, Sheppard makes it clearthat, "[e]ven learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties areentitled to have reviewed by the appellate court." In the circumstances of this case, the deficiency in the reasons precludes me fromproperly carrying out this appellate function. This case falls into the same category.

Accordingly, the finding of guilt on Count #1 is set aside and a new trial is ordered. [31] As for the second Count, which alleged that the appellant was in care and control of the car, the trial judge entered aconditional stay. Given the manner in which the evidence was adduced, both counsel at trial approached this count as an alternativebasis for liability. The Crown’s position was that, if the accused was not the driver but managed to get into the driver’s seat after Jessehad left the scene, he was still in care and control of a motor vehicle while “over 80”.

The appellant responded to this assertion with thedefence of automatism, as discussed above. [32] After finding the appellant guilty on the theory that he was the driver, the trial judge turned to the second count in thefollowing passage: Now, in relation to the issue of care and control, and this would apply really to the over 80 in particular, but also to the impaired, but if Iam wrong in my decision about the accused being the driver, in relation to care and control, it is this Court’s view the accused has failedto establish on a balance of probabilities the non-insane automatism defence that would acquit him.

Rather, his admitted self-inducedimpairment by alcohol, drinking 10 to 12 beers, disentitles him in the Court’s view to the non-insane automatism defence, and see myreferences to DeVingt and to Stone. In my view, this accident was caused by the accused being impaired and intoxicated and so thenon-insane automatism does not apply. It was self-induced and it is after the fact of the driving.

So the accused, in this Court’s view, is found guilty of the impaired operation – or impaired care and control of the motor vehiclebecause he was operating it and indeed had care and control as the two civilians indicated; and in relation to the over 80, the automatismdefence has not applied, so he is found guilty of the over 80. [emphasis added] [33] With respect, I have difficulty understanding the learned trial judge’s chain of reasoning in relation to this count.

While thispart of the judgment appears predicated on the assumption that appellant was not the driver, the trial judge seems to reject theapplicability of automatism because the accused was the driver. And this count also depended on the evidence of Ms. McDowell andMr. Emond, which, as I noted above, required further analysis. Moreover, I am unable to understand the following sentence from thepassage quoted above: “It was self-induced and it is after the fact of driving.” [34] There may well have been good reason to find that the appellant had not met his onus on the automatism defence.

Given theamount of alcohol consumed by the appellant, it was difficult to disentangle the effects of intoxication from a purported head injury orconcussion. However, the trial judge was not content to deal with the issue on this narrow basis, leading to the problems identified in theprevious paragraph. CONCLUSION [35] I have concluded that the conviction (and the finding of guilty leading to the conditional stay) should be set aside because ofthe manner in which the trial judge dealt with some key pieces of evidence. However, I do not accept that the conviction (and finding)should be set aside as unreasonable.

The Crown’s case was capable of establishing guilt. Another trier of fact may also conclude thatthe Jesse story was a fiction. However, the appellant is entitled to have a new trial at which all important pieces of evidence are properly considered afresh: R. v. Clouthier, supra and R. v. T.T. (2009), 2009 ONCA 613 , 68 C.R. (6th) 1 (Ont. C.A.), at p. 9.

TROTTER J. Released: October 21, 2013 CITATION: R. v. Schmidt, 2013 ONSC 6533 COURT FILE NO.: 70/12 DATE: 20131021 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – THOMAS SCHMIDT Appellant REASONS FOR JUDGMENT TROTTER J. Released: October 21, 2013 [4] In making this characterization, I do not wish to leave the impression that review for sufficiency engages a quantitative appraisal. Imake these observations only to underscore the point that lengthy and seemingly thorough reasons may be short on analysis. See thesimilar observations in R. v. A.J.S. (2011), 2011 ONCA 566 , 106 O.R. (3d) 586 (C.A.).